Welcome to the April 2009 edition of E-Gen the newsletter covering legal tips, topics and issues in Regeneration and Development.

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Please select from the list below to view this editions articles:

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The Environmental Damage (Prevention and Remediation) Regulations 2009

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The Cost of Promotion

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Richard Tinham - Partner

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www.wslaw.co.uk

Development

Regeneration

Real Estate

Introduction

The Environmental Damage (Prevention and Remediation) Regulations 2009 ("the Regulations") came into force on 1 March 2009.  They impose controversial new liability for environmental damage and extend the scope of existing UK environmental liability for English businesses.

The Regulations are the UK's response to the European Union's Environmental Liability Directive ("ELD").  The UK should have brought the directive into force by 30 April 2007 but have done so only after the European Commission took infringement proceedings.

What is being proposed?

The ELD has the objective of making operators of activities which cause damage financially liable for that damage (the 'polluter pays' principle). The Regulations apply to serious environmental damage to land, water and to species and habitats. They cover not only species and habitats protected by the Birds and Habitats Directives but also any other species and habitats protected on Sites of Special Scientific Interest (SSSIs) They impose duties on operators of economic activities to take immediate steps to prevent damage if there is an imminent threat, and to control damage which is occurring so as to limit its effects.

Who is affected?

Operators of activities listed in Schedule 2 of the Regulations will be liable for damage caused by them whether or not they are at fault.  This includes operators of industrial activities regulated under the Environmental Permitting regime, waste management operators, and transporters of dangerous or polluting goods by road, rail, inland waterways, sea or air.

Operators of any other economic "activity" whether public or private and whether or not carried out for profit can also be liable for species and habitat damage but only if they are at fault (that is, if they intended to cause damage or were negligent).

What do the regulations cover?

The regulations apply to a defined type of "Environmental Damage", this includes:

• Adverse effects on the integrity of a SSSI or on a species or habitat protected by EU legislation outside SSSIs.
• Adverse effects on surface water or groundwater consistent with a deterioration in the water's status.
• Contamination of land that results in a significant risk of adverse effects on human health.

It is important to remember that other environmental damage will still be covered by existing legislation such as the contaminated land regime and the Water Resources Act 1991.  However it is expected that these new Regulations will cover risks of less serious health effects than would trigger the existing regimes.

Duty to prevent environmental damage

If an operator of an activity causes an imminent threat of environmental damage the Regulations place him under a duty to take all practicable steps to prevent the damage and impose a new duty to notify the relevant details to the enforcing authorities.

An enforcing authority may also serve a notice requiring an operator to prevent environmental damage.

Remediation

Once environmental damage has occurred, the Regulations introduce procedures for the establishment of appropriate remedial measures. Operators will be expected to propose remedial measures themselves, and there will then be consultation with interested parties before a remediation notice is served. In the case of damage to water or species and habitats, these measures will include not only 'primary' remediation (for example, cleaning up the contaminated site), but also complementary remediation (cleaning up an alternative site if the damaged site cannot be fully restored), and compensatory remediation (carrying out other measures to provide alternative natural resources to compensate for the time during which the damaged site remains in its damaged state). The whole package of measures (primary, complementary or compensatory) will be carried out by the operator responsible for the damage.

In cases where the operator cannot be found or is otherwise unable to perform his duties, the enforcing authority has a power to carry out any necessary work and to claim its costs back from the responsible operator.

The Regulations contain certain defences. For example, an operator may not be liable for damage caused if he can show that he was operating in accordance with the conditions of a relevant permit, or if the damage was the result of an act of a third party which occurred despite appropriate safety precautions.

The Regulations apply to damage caused after they come into force on 1 March 2009.  Responsibility for enforcing the Regulations will broadly lie with the relevant Local Authorities in relation to damage to land, Natural England in relation to damage to species and the Environment Agency in relation to other damage

Offences

It is not an offence under the Regulations to cause damage in the first place as that is usually an offence under other existing legislation.  However it is an offence for an operator to fail to comply with a notice to prevent imminent environmental damage or to prevent further environmental damage.

What does this mean for businesses and developers?

There are over 30,000 cases of damage to the environment every year in the UK. The Regulations are estimated to cover only about 1% of these. Where the Regulations apply they are likely to require higher standards of remediation than under existing legislation. Estimated costs per case could range from £22,000 for damage to SSSIs to £105,000 for water damage. Costs for very serious cases could be far in excess of this.

It is now even more necessary for operators and developers to be aware of potential environmental liability if there are SSSIs or other European Sites both on and near their sites or if the site sits near streams, rivers or above significant ground water.  Where accidents occur resulting in environmental damage or the risk of it they must inform the Local Authority, Natural England or the Environment Agency.

For further information please contact the author.

Nicola Raistrick - Partner

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www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

Raising the Levy

Heads You Win: The Art to Negotiating Heads of Term

The Cost of Promotion

Incomplete Developments

HIP News

Heads of Terms ("HoTs") are frequently used in commercial transactions to set out the key points of the deal such as the identities of the parties, the price, the property/land for sale and the conditions of the proposed sale/purchase.

Whilst HoTs do not contain every detail of a transaction and are not intended to be legally binding they do serve a useful purpose in highlighting the parties' general intentions, help limit misunderstandings and save the time and cost of extensive negotiation on fundamental points. They will also give the legal draftsman a good starting point for drafting the contract.

This article will set out some of the commercial considerations the parties should be aware of when negotiating and agreeing HoTs.

HoT's are often morally binding

HoTs are frequently labelled with statements such as "subject to contract" to make clear to all parties concerned that the terms are not legally binding until contracts have been exchanged.

This does not mean however that the parties can simply disregard the provisions set out in the HoTs when negotiating the fine detail of the commercial transaction. The contracting parties may well consider that they have a moral commitment to be bound by the commercial terms agreed in the HoTs and any divergence from the commercial terms set out in the HoTs is likely to be resisted on the grounds that they are not included in the HoTs.

It is therefore important to allow some flexibility in the provisions set out in the HoTs to enable the parties' solicitors to negotiate the final contract and to allow for unknowns, such as adverse soil reports. In fact contracting parties should always consider involving their legal advisers at an early stage of negotiations prior to the agreement of HoTs to ensure that they accurately reflect each party's intentions.

What should be included in the HoTs?

These can usually be split into 4 sections: -

1) Terms of the Purchase

These are the key details of the transaction including: -

Parties

Obviously the identities of the contracting parties and their legal representatives should be included in full. If there are any third parties involved such as guarantors, agents who will certify the satisfaction of conditions or contractors who will be giving collateral warranties then details of these parties should also be included at the outset.

If there are any occupiers or tenants on the site then these should be disclosed at this stage.

Property

The full extent of the land or property that is being purchased must be described in full. A plan of the land or property is recommended. Whether the seller has a freehold or leasehold interest in the land and/or property should also be revealed.

Conditions

Where the parties are agreeing a conditional contract it is advisable to include the conditions in the HoTs. Common conditions include obtaining a satisfactory planning permission, expiry of the judiciary review period without judicial challenge following issue of a planning permission and obtaining consents from third parties such as Network Rail where its consent is required to develop within close proximity to rail lines.

Contracts for the disposal of affordable housing are often conditional on the developer acquiring the site and constructing up to "golden brick" level.

2) Financial terms

Price and VAT

The HoTs should state the price, if fixed, or the mechanism for fixing it, and whether VAT is intended to be charged, bearing in mind that SDLT is payable on the price plus VAT.

Deposit

Where a deposit is to be paid it is appropriate for the parties to agree whether the deposit is released unconditionally to the seller on exchange of contracts or held as stakeholder by the seller's solicitor pending completion. In conditional contracts it is usual for the deposit to be held by the seller's solicitor pending satisfaction of the conditions. It is also important to agree the amount payable on exchange of contracts. Sometimes, a deposit may be non refundable but this is unusual.

Overage/Underage

It is rare for complex land transactions nowadays to have a fixed price and deals in addition to a base price often include one or all of the following.  There are myriad types of overage the parties may want to incorporate in their transaction including planning overage (based on the number of units or habitable rooms the developer obtains over and above an agreed base figure), sales overage (sharing in the returns made once the units are sold less any incentives or costs) and housing grant overage (sharing in any grant the scheme receives from the Homes and Communities Agency).

Underage allows a developer to reduce the consideration payable where the developer has been unable to meet an agreed base figure. If the local planning authority grants a planning permission for fewer units than the base figure or the developer's proceeds from the sale of the units do not reach an agreed target then the purchase price can be adjusted to reflect this.

Deductions

Where there are planning costs (pursuant to Section 106 of the Town and Country Planning Act 1990) the parties' may agree that these are deductible from the purchase price (subject to an agreed cap).

A recent development is the creation of the Community Infrastructure Levy (a charge or contribution which is levied as a result of a planning permission) and the parties may agree that the levy (or part thereof) can be deducted from the purchase price.

The seller may want the developer to undertake works on the seller's retained land as part of the transaction and again the parties may consider deducting the costs of these works from the purchase price. Works may include constructing a new community facility or the provision of replacement services which were supplied on the land which is the subject of the sale. SDLT implications should be borne in mind.

Parties may agree the cost of professional services, such as obtaining satisfactory environmental reports, reports pursuant to the Charity Act where land is being sold by a charitable entity, and legal fees are borne by one party in order to facilitate an agreement.

Early Payments

Sometimes when the seller is a government agency the buyer pays the price upfront and carries out the works under licence with completion taking place following construction of the works.  It should be borne in mind that SDLT will be triggered by "substantial performance" (payment of a substantial part of the price or the buyer taking possession of a substantial part of the site). 

Deferred Payments

The archetypal transaction where there is a ten percent deposit followed by the balance payable on completion is largely replaced (particularly in the current climate) with deferred payments made at agreed intervals after completion of the land acquisition. Parties should consider whether the intervals should be fixed in time, e.g., twelve months after completion, or contingent on a particular event e.g., the developer obtaining a satisfactory planning permission. As mentioned below the seller may require some form of security where title passes to the buyer before the entire price is paid.

Staged Payments

Where the site is large or construction will be undertaken in phases the parties may consider staged payments.

3) Timetable

Longstop Dates

Parties will want to agree trigger dates and longstop dates within the contract by which a planning application is submitted to the local planning authority, planning permission is obtained by the developer, payments are made or works are started and/or completed.

Extensions

Where completion is conditional on planning the developer should negotiate when longstop dates are extendable. Such circumstances include where a planning application has been rejected and the developer wants to resubmit a fresh application, where the developer is minded to appeal a planning refusal and where the planning consent is subject to judicial challenge.

4) Terms specific to the deal

Access

A developer may want to gain access to the site either to undertake ground surveys or commence works prior to legal completion of the land purchase.  Care should be taken to avoid SDLT becoming payable prior to completion by "substantial performance" as mentioned above.

Security

Where payments are made in advance of legal completion or in advance of works a party may want to negotiate security to protect these payments. Security may take a number of forms. A bank bond, legal charge or parent company guarantee can be offered as part of the deal.

Warranties and licences

Where new properties are to be built on the land the contractor, sub contractor or professional team maybe required to provide warranties.  The buyer may also require licences from third parties to use drawings and warranties from the seller's consultants where the seller has obtained any planning permission or commissioned any reports or carried out works on which the buyer wishes to rely.  The seller may require these from the buyer's consultants if a conditional contract is terminated because the conditions are not satisfied.

Works

If works will be undertaken as part of the transaction the parties should agree a specification for the works which includes the type of materials used in the construction, the standard to which the works must be constructed, any service media that will be supplied/connected (if any) and a timetable for the completion of the works.  Again, SDLT implications should be borne in mind; the works may comprise chargeable consideration.

Lease back

Sometimes the buyer agrees to lease back part of the site to the seller following construction of works.  SDLT implications should be borne in mind: the SDLT exchange rules will apply which means that SDLT will be payable on market value and not on the price, VAT and overage.

Concluding Remarks

Comprehensive and well defined HoTs will set out the commercial points of the transaction providing the legal adviser with a good starting point in drafting the contract. The HoTs should not include the minutia of the transaction. This should be left to the legal advisers to negotiate.

 For further information on this topic please contact the author.

Huseyin Huseyin - Solicitor

Email Huseyin >>

020 7593 5128

www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

The Environmental Damage (Prevention and Remediation) Regulations 2009

Raising the Levy

The Cost of Promotion

Incomplete Developments

HIP News

The Community Infrastructure Levy is a new charge on developers that will change the way developers contribute to local infrastructure improvements.

What is it?

When the Planning Act ("the Act") received Royal Assent on 26 November 2008, the Community Infrastructure Levy ("CIL") has become a feature of the planning regime in England and Wales

The CIL is a new form of charging for those local infrastructure improvements which are required as a result of a new development being constructed in an area.  The CIL will be levied by local planning authorities – in most cases the local council.

When will it come into force?

Whilst parts of the Planning Act 2008 are already in force, the Department for Communities and Local Government ("DCLG") have stated that the provisions of the Act relating to the CIL will not become effective until October 2009 at the earliest.  Indeed, the draft regulations which "flesh out" the CIL provisions have not yet been published.  Once the regulations are in force, local authorities will begin to prepare CIL development plan documents, and therefore the CIL will in all likelihood not be actually charged before 2012.

How will it be calculated?

A local planning authority wishing to charge the CIL will first need to prepare a schedule setting out its rates and other criteria for determining the CIL.  In preparing its schedule, the council take into account actual and expected infrastructure costs, the economic viability of development, and also other sources of funding for infrastructure.

The actual basis for calculation, however, will not be known until the regulations are published, but could include any of the following:

• the size of the proposed development (by area or number of units etc.);
• the nature of proposed development;
• the existing nature of the site; and
• an inflation index.

Why is it being brought in?

The premise for the introduction of the CIL is that unlike section 106 contributions, the CIL will benefit both developers and local authorities by having a standardised approach to contributions.  This will be achieved by means of a fixed tariff.  However, whilst this reasoning may be true for contributions exacted within a particular area or borough, there is no reason to assume it will be true between areas, as each council will prepare its own CIL schedule.

The cynical (or should we say realistic) view is, of course, that it is simply an additional way for government to tax developers.  This view is supported by the fact that (i) there is no obligation for councils not to charge both the CIL and s106 contributions; and (ii) the DCLG has indicated that it wants more developments to be subject to the CIL than are currently subject to s106 contributions.  Overall contributions to councils are expected to rise as a result of the CIL.

What type of development will it apply to?

Local planning authorities will be able to levy the CIL on all types of development, both residential and commercial.  Land used or developed by a charity will be exempt, as will private homeowners.  It is also expected that some minimum threshold development value will need to be triggered for the CIL to be chargeable, but this will be at the discretion of individual councils.

When and how will the CIL have to be paid?

The CIL will be payable on the commencement of the development, but it will be payable in instalments.  It will also be payable in kind, so a developer will be able to trade land for contributions, or undertake construction of infrastructure itself in lieu of financial payment.

How will the CIL be applied?

The CIL must be applied to funding "infrastructure", which will initially include roads, flood defences, schools, medical facilities, sports/recreational grounds, parks and affordable housing.  This list may be amended by the CIL regulations, when issued.  The local authority may be permitted to charge for the costs of the infrastructure already constructed, or to apply collected levies to infrastructure outside its boundaries.

It is expected that local authorities will have to monitor and report on how it applied the proceeds of any CIL it has collected.

How will payment be enforced?

The regulations will set out how non-payment or late payment of the CIL will be enforced.  This will be as per most statutory charges, i.e. interest, penalties, and potentially, the imposition of local land charges and the creation of a criminal offence for CIL avoidance.
 
The Act does set out maximums for some of the sanctions, but the real detail will be contained in the regulations.

Conclusion

The CIL is not here yet, but it is coming.  A lot of the detail as to how the CIL will operate is yet to be determined.  Please watch this space for updates following release of the draft regulations, which is expected to occur in the very near future.

For further information please contact the author.

Anthony Woolley

Email Anthony >>

020 7593 5105

www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

The Environmental Damage (Prevention and Remediation) Regulations 2009

Heads You Win: The Art to Negotiating Heads of Term

The Cost of Promotion

Incomplete Developments

HIP News

The case of Boots UK Limited v Trafford Centre Limited [2008] is an interesting case for all owners and occupiers of retail property with service charges which include advertisement and promotion.

The case was heard by the High Court two weeks before Christmas 2008. The dispute concerned the cost of various entertainments, Christmas decorations, a Santa's Grotto and a "Sky Wall" television screen all provided by the landlord at the Trafford Centre in Manchester.

The question that the High Court had to decide was whether such items were within the definition of "Promotion" as defined in the tenant's lease.

The relevance of this was if the items were part of the Promotion costs then the landlord was obliged under the lease to share such costs 50:50 with the tenant and the total Promotion costs in each service charge period were capped at 10 per cent of the total service charge.

The facts of the case

Boots UK Limited was the tenant of a unit at the Trafford Centre under a lease for a term of 25 years which had detailed provisions in relation to service charges.

Under the terms of the lease the landlord had absolute discretion to vary, extend, alter and add to the services. The landlord also had to use reasonable endeavours to provide the services in an efficient and cost effective way in the interests of the Centre as a whole, having regard to various maters including the obligation to manage the Centre as    a high class shopping centre. 

One of the services under the terms of the lease was providing "Promotion" which was defined in the lease as follows:

" ...advertising and other forms of promotion of the Centre intended to bring additional custom to the Centre which shall be reasonable and proper but excluding any advertising in respect of letting any unlet units"

There was no dispute as to the entitlement of the landlord to include a charge for the items. The dispute was as to whether the costs incurred in respect of the items were subject to the provision requiring them to be shared 50:50 and to be subject to the cap.

The tenant's argument was centred on the reference to bringing "additional custom to the Centre" in the definition of Promotion in the lease. The tenant's case was that if the intention behind the expenditure had the sole or dominant purpose, or a substantial part of the purpose, of  bringing additional customers to the Centre, then it came within the definition of  Promotion. The tenant submitted that the disputed items were intended to bring additional custom to the Centre and so were within the definition of Promotion and within the 50:50 sharing provisions and the cap.

The landlord made four submissions: that a promotion can only take place when the adverting and promotion of the Centre took place outside the Centre; that promotion is something irregular; that promotion was something out of ordinary or unusual and that on a detailed analysis of the lease, some, if not all, of the disputed items came within a list of matters in the lease so that one would not reach the conclusion that they were promotion. The items were not promotions and the 50:50 sharing provision did not apply so that  the tenant should be solely responsible for the cost of those items.

What the court considered

The first question is whether each item is a form of promotion. The Court's approach was to start with the definition of Promotion and the Court pointed out that it refers to advertising "and other forms of promotion of the Centre". Advertising is one form but there are other types of promotion. Secondly, the thing being promoted must be the Centre.  If, for example, it was held that the entertainments are within the definition of Promotion, the Court must be satisfied that the entertainments are a form of promotion of the Centre.  If so, the third stage is to ask whether they bring any additional custom to the Centre. 

The Court rejected the landlord's approach and was inclined instead to use the "elephant test" put forward by the tenant, that one recognises something that is a form of promotion when one sees it, but with a different result.  By applying an elephant test the Court said that one can distinguish between something that is a promotion of the Centre and something on the other side of the line, something which is of benefit to the Centre, or which is an attraction within the Centre or which is a service, facility or amenity within the Centre.

The Court held that the entertainments, Christmas decorations and the Grotto are a facility, an amenity or an attraction of the Centre but that they are not a promotion of the Centre.  The same conclusion was reached with regard to the Sky Wall but with a slight qualification.
Therefore there was no 50:50 sharing of the costs of those facilities and the 10 per cent cap did not apply.

Conclusion

It is important for the parties to be careful to identify precisely the nature of, and extent of, the costs that can be recovered through service charges in leases. If promotion costs are relevant and are to be shared (as suggested by the RICS Service Charge Code) or capped, then the lease should set out clearly what items are to be included as promotions to avoid a dispute arising later on.

For further information on this topic please contact the author.

Francesca Maran - Solicitor

Email Francesca >>

020 7593 0247

www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

The Environmental Damage (Prevention and Remediation) Regulations 2009

Raising the Levy

Heads You Win: The Art to Negotiating Heads of Term

Incomplete Developments

HIP News

In the current economic climate joint ventures are becoming an increasingly attractive means by which private developers and social landlords can work together to build out schemes. Whether for the purposes of acquiring a new site, or dealing with a scheme already in progress, the introduction of one or more joint venture partner(s) enables the participating parties to jointly exploit a development opportunity and share the risks, management and costs associated with it. It also means that the resultant joint venture can exploit the strengths of each of its constituent owners to promote the business for all concerned, the classic model involving the coming together of the developer's economies of scale, contract management skills, resources and marketing expertise with a registered social landlord's ability to satisfy the social housing elements of a s.106 planning agreement and its expertise in marketing affordable housing and managing it appropriately through the life of the development.

There are also financial and accounting benefits to be had from a joint venture, particularly if ownership and management is split equally between participant parties and it is to be funded by a third party debt provider on a non-recourse basis. Debt drawdown can be matched to construction expenditure without significant exposure to the "owning" parties and problematic schemes can to some extent be moved "off-balance sheet" freeing up liquidity in an organisation for future investment elsewhere.

Joint venture considerations
When entering a joint venture it is advisable to properly document your relationship with both the project and also your joint venture partner. With this in mind, consideration should be given to key issues such as: the legal nature of the joint venture relationship; the scope of the joint venture's business and the means by which it will be funded; each party's contribution in terms of cash and resources; who will manage the venture and the manner in which decisions are to be made; what happens where the parties do not agree on an aspect of the development; and the ability of a party to transfer its interest in the arrangement to another person.

In this first joint venture article we look at the joint venture models that are available highlighting some of the attractions and disadvantages associated with each.

What joint venture model should I use?
Despite the attractions, before rushing into a joint venture it is advisable for all parties involved to consider and agree on the most appropriate vehicle: the term 'joint venture' has no specific meaning in English law, other than to describe a commercial arrangement between two or more economically independent entities, sharing risk, assets, rewards and control over parts of a project or business. It follows that in almost all joint ventures, the first decision relates to whether or not a separate legal entity should be established for the "joint venture". There are a number of options ranging from a purely contractual arrangement to one that involves the establishment of a new, jointly owned, legal entity.

Co-operation agreement
Often thought of as the simplest form of joint venture, a co-operation agreement or consortium agreement is an arrangement under which the participants agree to associate as independent contractors, rather than as shareholders in a company or partners in a legal partnership. The agreement will specify the scope of the venture, the obligations and commitment of individual participants, and will contain provisions addressing the financing of the venture and the entitlement of individual participants to the fruits of the venture. Crucially, since the costs and administration associated with incorporating a new entity are avoided it usually works well on smaller projects. The downside is that it is more difficult to pool assets and resources since no specific legal entity is created for the purposes of leading on the project.

Limited liability company
A limited liability joint venture company (JVC) is often considered to be the most appropriate structure since it can (i) own and deal in assets; (ii) sue and be sued; and (iii ) contract in its own right. This is particularly useful where a site is sufficiently large to warrant a dedicated pool of resources coupled with contained liability, since the participants are able to transfer assets into the JVC and limit their liability with respect to potential liabilities and losses. It also has the advantage of offering considerable flexibility for the purposes of financial and tax planning, through the creation of different types of share and loan capital. JVC's may not be appropriate for smaller developments owing to the costs associated with their establishment and ongoing administration.

Limited liability partnerships
Limited liability partnerships (LLPs) are becoming more widespread as a medium for ventures between individuals, owing primarily to their tax transparency (profits flow straight through to the owners who are taxed on revenue in the usual way) and limited liability status. An LLP is formed by incorporation under the Limited Liability Partnerships Act 2000 as a body corporate with legal personality separate from that of its members. On the positive side as a separate legal entity, the LLP and not its members will generally be liable to third parties. Unlike a limited liability company, the management of an LLP is intertwined with its ownership which often means it is an unsuitable vehicle for pure investment purposes, where the investor has no interest in participating in day to day management.

Partnership (or limited partnership)
In the case of joint ventures which do not involve the formation of a separate legal entity (sometimes described as unincorporated associations), the basic legal distinction is between arrangements which constitute a "legal partnership" and those which do not. If a partnership exists, the Partnership Act 1890 will apply to the joint venture arrangements and, whatever the agreement says, the participants will have statutory obligations which cannot be overridden by the contractual arrangement between the parties. This may lead to each partner being made jointly liable without limit for the debts and obligations of the partnership and jointly and severally liable for the wrongful acts and omissions of his co-partners. This level of risk sharing makes conventional partnerships unattractive as joint venture vehicles.

Conclusion
Whatever the nature of a development, a joint venture model is likely to be available. Parties who choose to work together during these uncertain economic times have much to gain by jointly exploiting development opportunities, pooling their resources and expertise, and spreading the associated risk.

 For further information on this topic please contact the author.

Richard Tinham - Partner

Email Richard >>

www.wslaw.co.uk

Main page

The Environmental Damage (Prevention and Remediation) Regulations 2009

Raising the Levy

Heads You Win: The Art to Negotiating Heads of Term

The Cost of Promotion

Incomplete Developments

HIP News

A development that has only been partially completed can cause problems for land owners/occupiers in the locality and the Local Authority.  An incomplete development may result in a visually unattractive site which adversely affects the value of property in the surrounding area.  A developer may have unforeseen difficulties and just complete the most profitable parts of a development and leave the rest of the site uncompleted. This means that land is not being used to its full potential and this is contrary to Government policy. 

The above issues are exacerbated by the fact that developers will often choose to implement a planning permission by doing the bare minimum to keep it 'alive', for example, by digging a trench to contain the foundations of a building.  The reason for this is that if a planning permission has not been implemented with the specified time period, which is usually three years from the date of the permission , the planning permission expires.  If the developer implements the planning permission there is no longer a statutory time limit for the development to be completed and the land will retain the benefit of planning permission until such time as the developer wishes, or is able, to complete the development.  .  If development comes to a halt after implementation then the local community can, in effect, be left with a building site for an unforeseeable amount of time. Many developers are in fact "mothballing" sites in the current economic climate

Local Planning Authorities ('LPA's) have powers to deal with partially completed developments.  However, the reasons why developments are not completed are principally financial so, although Government encourages LPAs to be proactive in dealing with partially completed developments, some of the LPA's powers are rarely used as they may not achieve the objective (completion of the development/improving the visual amenity of a site) and they can take a great length of time to process and the costs to the LPA can be significant.

LPA's Powers   
The LPA can use its powers to remove or alter the offending development, improve the condition of the land or terminate the planning permission.

Negotiation
The LPA and developer can simply to agree how to resolve any issues resulting from the partial completion of a development.  Where a developer regularly submits planning applications in an area this may be the easiest solution.  It is however important for the purpose of negotiation for the developer to be aware of what powers the LPA has if it does decide to go down a more formal route – please see below. 

Purchasing the land
Rarely used due to the costs involved but the LPA can use its compulsory purchase powers to purchase the land and arrange for the works to be done if it wants to ensure that a particular development is completed.

Completion Notices
Although it is hoped that a completion notice will encourage a developer to complete a development, the notice itself does not oblige the developer to complete the development.  A completion notice threatens to withdraw the planning permission to the extent that it has not been implemented. 

An LPA can serve a completion notice if it considers that the development will not be completed within a reasonable time .  A completion notice cannot be served until the time limit for commencing development has passed (i.e. usually 3 years).  The completion notice will state that, subject to approval from the Secretary of State, the planning permission will cease to have effect after the specified date, which cannot be less than 12 months after the Secretary of State has confirmed that the completion notice.  Note that the confirmation from the Secretary of State can take several months.

After the date specified in the notice has passed then any works carried out prior to the specified date are unaffected by the notice but any works carried out after the specified date notice will not have the benefit of planning permission. 

Completion notices are rarely used.  Apart from the length of time it takes to process a completion notice, the result can be a partially developed site which does not have the benefit of planning permission.  The success of a completion notice appears to rely on the developer being:

(i) In a financial position to complete the development; and
(ii) Concerned about the effect that the loss of planning permission will have on the value of the land.

Planning Conditions
There are no statutory time limits for a development to be completed so planning conditions or planning obligations imposed by a Section 106 Agreement can be used to ensure that particular elements of the development are at a certain stage before other specified parts of the development can be commenced/used/occupied.  For example, a restriction preventing occupation of a percentage of the open market residential dwellings until the affordable housing units have been completed.  Planning conditions will have been imposed at the time planning permission is granted so this is a preventative measure that can be used by the LPA to try and reduce the risk of developments only being partially completed.  

Developers should check carefully any draft planning conditions and any planning obligations when negotiating a Section 106 Agreement, looking in particular for provisions restricting commencement of development or occupation/use of land until other parts of the development have been completed.

Maintenance Notices
A maintenance notice can be used where the condition of land or buildings adversely affects the amenity of an area and the notice can require the owner or occupier of land to carry out works such as:

• Clearance
• Demolition
• Re-building
• External repairs
• Landscaping

The maintenance notice will set out the steps to be taken and a timetable for carrying out the necessary works.  The notice must give the developer at least 28 days until it takes effect.

If works are not carried out in accordance with a maintenance notice then the LPA can prosecute the owner or occupier  or carry out the works themselves and recover the cost from the owner
However, developers will have a legitimate defence to a maintenance notice if the unsightly condition of the site is as a result of work being carried out pursuant to a planning permission, for example, where there are builder's materials or soil associated with building work on the site.  This defence is available even where work has ceased on site so this power of serving maintenance notices appears to be of limited use to the LPA except where a site has become unsightly for reasons others than building works, for example, deterioration or vandalism of buildings.  

Discontinuance Orders
A discontinuance order can be served to require the removal or alteration of any building works if it appears to the LPA that this would be beneficial to the "proper planning of their area including the interests of amenity"  .

A discontinuance order must be confirmed by the Secretary of State so this is a lengthy process, as with completion notices.  Also, if a discontinuance notice is confirmed then the LPA is liable to pay compensation to the owner for the depreciation in land value and expenses involved in complying with the order.  The costs can be substantial so discontinuance orders are rarely used in practice.

Building Act 1984
By innovative use of the Building Act 1984 planning departments and building regulations departments could work together to deal with the issue of partially completed developments.  Relevant powers include requiring the developer to:

• Pull down or remove work that does not comply with building regulations, with an option to alter the building so that it does comply;
• Carry out works to remove the danger with an option to demolish the building or part of building where danger arises due to the condition of a building or structure;
• Carry out works to repair or restore with an option to demolish the building or any part of a building that is in a ruinous or dilapidated condition and is seriously detrimental to the amenities of the neighbourhood

Conclusion
Although LPAs have a number of powers to deal with the problem of partially completed developments they are likely only to use them in exceptional circumstances due to the potential cost and length of time that the process will take.  In addition the objective may not be met.  For example, where a completion notice is served but the developer does not have the finance in place to complete the development then this would just result in a partially completed site which has lost the benefit of planning permission..  Enforcement under the Building Act 1984 would take less time and possibly incur less cost for an LPA but that will only to available to them where work has been done that either does not comply with building regulations or a building on the site becomes dangerous or dilapidated.

For further information please contact the author.

Sarah Birchley - Solicitor

Email Sarah >>

020 7593 5027

www.wslaw.co.uk

Main page

Homes and Communities Agency (HCA)

How green is your building?

Can you rely on an oral agreement?

OFT recommends sale and rent back transactions should be regulated by the FSA.

It is established law that contracts for the sale of an interest in land must be in writing and incorporate all the terms that the parties have agreed if they are to be enforceable (Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989). Occasionally, however Courts have shown themselves willing to remedy the situation where there has not been a written contract if they consider the landowner to have acted in bad faith.  However there are very high thresholds to overcome as the following recent case illustrates.

In the case of Yeoman's Rowe Management Limited v Cobbe the House of Lords had to consider the extent to which the Court should recognise exceptions to that rule. The case involved an oral agreement between Mr Cobbe and Yeoman's Rowe Management Company Limited ("the Company") to the effect that, once Mr Cobbe obtained planning permission to demolish an existing building and erect a terrace of six houses, the land would then be sold to Mr Cobbe by the Company for an upfront payment of £12 million.

Planning permission was duly granted, but the Company claimed that the oral agreement had lapsed, as planning permission had not been obtained by an alleged longstop date, and sought to renegotiate the price.

Mr Cobbe insisted that the financial terms of the oral agreement should be complied with. He sought a declaration through the Court that the Company held the land on trust for itself and him and that the Company was prevented from denying that Mr Cobbe had an interest in the property. He agreed that the agreement was not in writing but argued that the parties had regarded themselves as "bound" by the terms of the oral agreement.

The Court considered the various remedies that are available to rectify bad faith. One of those remedies is called "proprietary estoppel". For a claim of proprietary estoppel to arise the claimant- Mr Cobbe in this case- must establish the following elements:
1. The landowner must expressly, or by implication, have given the claimant an assurance which results in the claimant believing that he has some right over the landowner's land and;
2. The claimant must demonstrate that he has relied on this belief to his detriment and the landowner must be aware of this; and
3. The landowner has tried to deny the existence of the right.

If the claimant established that these elements exist so, the Court will look at the circumstances surrounding the case and consider the intentions of the parties and decide whether it should "step in" to prevent the landowner from asserting its legal right to the land and declare the terms of a contract.

The House of Lords held that in this case the test for establishing proprietary estoppel was not met.

The Court placed reliance on the fact that the oral agreement, which had been reached in principle, did not cover everything that would have been expected to be dealt with in a formal written contract.
For example the final contract could be expected to have included an obligation on Mr Cobbe to progress the development in accordance with certain time periods and to deal with some sort of security for the overage which was payable to the Company.

Mr Cobbe's expectation was therefore dependent on a successful negotiation of additional terms, the oral agreement alleged was not sufficiently certain to provide the basis for a proprietary estoppel.

The House of Lord's decision rested on the fact that Mr Cobbe's expectation was dependent on the outcome of future contractual negotiations and the conclusion of a formal written contract and the fact that the Court would be unable to infer the missing terms.
The House of Lords did however allow a personal remedy against the Company and awarded Mr Cobbe a sum based on the value of Mr Cobbe's services to the Company

Lesson to learn

The House of Lords was of the view that the doctrine of "proprietary estoppel" had in the past been over used by the Courts as a way of providing justice when faced with litigants who had been acting in bad faith but who had "justice" on their side.

Although the Courts may be less inclined to use equitable remedies to rectify one party's bad faith it is not impossible for them to do so.

The Yeoman's case highlights the importance of always recording agreed and re-negotiated terms in writing and serves as a warning to anyone against proceeding without proper documentation in place.

 For further information on this topic please contact the author.

Francesca Maran - Solicitor

Email Francesca >>

020 7593 5247

www.wslaw.co.uk/

Main page

Homes and Communities Agency (HCA)

How green is your building?

VAT consequences for house builders who opt for short terms rents.

OFT recommends sale and rent back transactions should be regulated by the FSA.

Home Information Packs (HIPs) are to be amended for all properties marketed after 6 April 2009 to include an additional document called the Property Information Questionnaire (PIQ).

The inclusion of the PIQ will be compulsory and must be included in the HIP at the point of marketing the property in question. It is designed to be easy to complete without professional help and to provide basic and useful information about a property.

There are two versions of the PIQ, one for sales of new build properties and one for sales of existing properties.

The PIQ relating to new build properties consists of questions regarding whether or not the property has the benefit of any warranties and whether building regulations approval has been granted.

It also covers more practical issues such as whether there is any parking, what utilities are to be connected and access. If the property is to be sold leasehold rather than freehold, there are additional questions covering what the general terms of the lease are and whether there is a management company, what the ground rent and service charge are.

Whilst the addition of the PIQ creates more work for both the seller and their conveyancer prior to the marketing of a property, the form is not difficult to complete and should not take too much time or effort.

However, it is unclear as to how useful the form will be with regard to new build properties, since developers would generally have provided all of this information in their sales literature or replies to enquiries anyway.

www.communities.gov.uk/publications/housing/propertyinformationquestionnew

For futher information please contact the author.

Home Information Packs (HIPs) are to be amended for all properties marketed after 6 April 2009 to include an additional document called the Property Information Questionnaire (PIQ).

The inclusion of the PIQ will be compulsory and must be included in the HIP at the point of marketing the property in question. It is designed to be easy to complete without professional help and to provide basic and useful information about a property.

There are two versions of the PIQ, one for sales of new build properties and one for sales of existing properties.

The PIQ relating to new build properties consists of questions regarding whether or not the property has the benefit of any warranties and whether building regulations approval has been granted.

It also covers more practical issues such as whether there is any parking, what utilities are to be connected and access. If the property is to be sold leasehold rather than freehold, there are additional questions covering what the general terms of the lease are and whether there is a management company, what the ground rent and service charge are.

Whilst the addition of the PIQ creates more work for both the seller and their conveyancer prior to the marketing of a property, the form is not difficult to complete and should not take too much time or effort.

However, it is unclear as to how useful the form will be with regard to new build properties, since developers would generally have provided all of this information in their sales literature or replies to enquiries anyway.

www.communities.gov.uk/publications/housing/propertyinformationquestionnew

For further information on this topic please contact the author.

Leo Stevens - Trainee

Email Leo >>

020 7593 0291

www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

The Environmental Damage (Prevention and Remediation) Regulations 2009

Raising the Levy

Heads You Win: The Art to Negotiating Heads of Term

The Cost of Promotion

Incomplete Developments

A development that has only been partially completed can cause problems for land owners/occupiers in the locality and the Local Authority.  An incomplete development may result in a visually unattractive site which adversely affects the value of property in the surrounding area.  A developer may have unforeseen difficulties and just complete the most profitable parts of a development and leave the rest of the site uncompleted. This means that land is not being used to its full potential and this is contrary to Government policy. 

The above issues are exacerbated by the fact that developers will often choose to implement a planning permission by doing the bare minimum to keep it 'alive', for example, by digging a trench to contain the foundations of a building.  The reason for this is that if a planning permission has not been implemented with the specified time period, which is usually three years from the date of the permission, the planning permission expires.  If the developer implements the planning permission there is no longer a statutory time limit for the development to be completed and the land will retain the benefit of planning permission until such time as the developer wishes, or is able, to complete the development.  .  If development comes to a halt after implementation then the local community can, in effect, be left with a building site for an unforeseeable amount of time. Many developers are in fact "mothballing" sites in the current economic climate

Local Planning Authorities ('LPA's) have powers to deal with partially completed developments.  However, the reasons why developments are not completed are principally financial so, although Government encourages LPAs to be proactive in dealing with partially completed developments, some of the LPA's powers are rarely used as they may not achieve the objective (completion of the development/improving the visual amenity of a site) and they can take a great length of time to process and the costs to the LPA can be significant.

LPA's Powers   
The LPA can use its powers to remove or alter the offending development, improve the condition of the land or terminate the planning permission.

Negotiation
The LPA and developer can simply to agree how to resolve any issues resulting from the partial completion of a development.  Where a developer regularly submits planning applications in an area this may be the easiest solution.  It is however important for the purpose of negotiation for the developer to be aware of what powers the LPA has if it does decide to go down a more formal route – please see below. 

Purchasing the land
Rarely used due to the costs involved but the LPA can use its compulsory purchase powers to purchase the land and arrange for the works to be done if it wants to ensure that a particular development is completed.

Completion Notices
Although it is hoped that a completion notice will encourage a developer to complete a development, the notice itself does not oblige the developer to complete the development.  A completion notice threatens to withdraw the planning permission to the extent that it has not been implemented. 

An LPA can serve a completion notice if it considers that the development will not be completed within a reasonable time .  A completion notice cannot be served until the time limit for commencing development has passed (i.e. usually 3 years).  The completion notice will state that, subject to approval from the Secretary of State, the planning permission will cease to have effect after the specified date, which cannot be less than 12 months after the Secretary of State has confirmed that the completion notice.  Note that the confirmation from the Secretary of State can take several months.

After the date specified in the notice has passed then any works carried out prior to the specified date are unaffected by the notice but any works carried out after the specified date notice will not have the benefit of planning permission. 

Completion notices are rarely used.  Apart from the length of time it takes to process a completion notice, the result can be a partially developed site which does not have the benefit of planning permission.  The success of a completion notice appears to rely on the developer being:

(i) In a financial position to complete the development; and
(ii) Concerned about the effect that the loss of planning permission will have on the value of the land.

Planning Conditions
There are no statutory time limits for a development to be completed so planning conditions or planning obligations imposed by a Section 106 Agreement can be used to ensure that particular elements of the development are at a certain stage before other specified parts of the development can be commenced/used/occupied.  For example, a restriction preventing occupation of a percentage of the open market residential dwellings until the affordable housing units have been completed.  Planning conditions will have been imposed at the time planning permission is granted so this is a preventative measure that can be used by the LPA to try and reduce the risk of developments only being partially completed.  

Developers should check carefully any draft planning conditions and any planning obligations when negotiating a Section 106 Agreement, looking in particular for provisions restricting commencement of development or occupation/use of land until other parts of the development have been completed.

Maintenance Notices
A maintenance notice can be used where the condition of land or buildings adversely affects the amenity of an area and the notice can require the owner or occupier of land to carry out works such as:

• Clearance
• Demolition
• Re-building
• External repairs
• Landscaping

The maintenance notice will set out the steps to be taken and a timetable for carrying out the necessary works.  The notice must give the developer at least 28 days until it takes effect.

If works are not carried out in accordance with a maintenance notice then the LPA can prosecute the owner or occupier  or carry out the works themselves and recover the cost from the owner

However, developers will have a legitimate defence to a maintenance notice if the unsightly condition of the site is as a result of work being carried out pursuant to a planning permission, for example, where there are builder's materials or soil associated with building work on the site.  This defence is available even where work has ceased on site so this power of serving maintenance notices appears to be of limited use to the LPA except where a site has become unsightly for reasons others than building works, for example, deterioration or vandalism of buildings.  

Discontinuance Orders
A discontinuance order can be served to require the removal or alteration of any building works if it appears to the LPA that this would be beneficial to the "proper planning of their area including the interests of amenity"  .

A discontinuance order must be confirmed by the Secretary of State so this is a lengthy process, as with completion notices.  Also, if a discontinuance notice is confirmed then the LPA is liable to pay compensation to the owner for the depreciation in land value and expenses involved in complying with the order.  The costs can be substantial so discontinuance orders are rarely used in practice.

Building Act 1984
By innovative use of the Building Act 1984 planning departments and building regulations departments could work together to deal with the issue of partially completed developments.  Relevant powers include requiring the developer to:

• Pull down or remove work that does not comply with building regulations, with an option to alter the building so that it does comply;
• Carry out works to remove the danger with an option to demolish the building or part of building where danger arises due to the condition of a building or structure;
• Carry out works to repair or restore with an option to demolish the building or any part of a building that is in a ruinous or dilapidated condition and is seriously detrimental to the amenities of the neighbourhood

Conclusion
Although LPAs have a number of powers to deal with the problem of partially completed developments they are likely only to use them in exceptional circumstances due to the potential cost and length of time that the process will take.  In addition the objective may not be met.  For example, where a completion notice is served but the developer does not have the finance in place to complete the development then this would just result in a partially completed site which has lost the benefit of planning permission..  Enforcement under the Building Act 1984 would take less time and possibly incur less cost for an LPA but that will only to available to them where work has been done that either does not comply with building regulations or a building on the site becomes dangerous or dilapidated.

For further information please contact the author.

Anthony Woolley

Email Anthony >>

www.wslaw.co.uk

Main page

Homes and Communities Agency (HCA)

How green is your building?

Can you rely on an oral agreement?

OFT recommends sale and rent back transactions should be regulated by the FSA.

A development that has only been partially completed can cause problems for land owners/occupiers in the locality and the Local Authority.  An incomplete development may result in a visually unattractive site which adversely affects the value of property in the surrounding area.  A developer may have unforeseen difficulties and just complete the most profitable parts of a development and leave the rest of the site uncompleted. This means that land is not being used to its full potential and this is contrary to Government policy.

The above issues are exacerbated by the fact that developers will often choose to implement a planning permission by doing the bare minimum to keep it 'alive', for example, by digging a trench to contain the foundations of a building.  The reason for this is that if a planning permission has not been implemented with the specified time period, which is usually three years from the date of the permission¹, the planning permission expires.  If the developer implements the planning permission there is no longer a statutory time limit for the development to be completed and the land will retain the benefit of planning permission until such time as the developer wishes, or is able, to complete the development.  If development comes to a halt after implementation then the local community can, in effect, be left with a building site for an unforeseeable amount of time. Many developers are in fact "mothballing" sites in the current economic climate

Local Planning Authorities ('LPA's) have powers to deal with partially completed developments.  However, the reasons why developments are not completed are principally financial so, although Government encourages LPAs to be proactive in dealing with partially completed developments, some of the LPA's powers are rarely used as they may not achieve the objective (completion of the development/improving the visual amenity of a site) and they can take a great length of time to process and the costs to the LPA can be significant.

LPA's Powers   
The LPA can use its powers to remove or alter the offending development, improve the condition of the land or terminate the planning permission.

Negotiation
The LPA and developer can simply to agree how to resolve any issues resulting from the partial completion of a development.  Where a developer regularly submits planning applications in an area this may be the easiest solution.  It is however important for the purpose of negotiation for the developer to be aware of what powers the LPA has if it does decide to go down a more formal route – please see below. 

Purchasing the land
Rarely used due to the costs involved but the LPA can use its compulsory purchase powers to purchase the land and arrange for the works to be done if it wants to ensure that a particular development is completed.

Completion Notices
Although it is hoped that a completion notice will encourage a developer to complete a development, the notice itself does not oblige the developer to complete the development.  A completion notice threatens to withdraw the planning permission to the extent that it has not been implemented. 

An LPA can serve a completion notice if it considers that the development will not be completed within a reasonable time².  A completion notice cannot be served until the time limit for commencing development has passed (i.e. usually 3 years).  The completion notice will state that, subject to approval from the Secretary of State, the planning permission will cease to have effect after the specified date, which cannot be less than 12 months after the Secretary of State has confirmed that the completion notice.  Note that the confirmation from the Secretary of State can take several months.

After the date specified in the notice has passed then any works carried out prior to the specified date are unaffected by the notice but any works carried out after the specified date notice will not have the benefit of planning permission. 

Completion notices are rarely used.  Apart from the length of time it takes to process a completion notice, the result can be a partially developed site which does not have the benefit of planning permission.  The success of a completion notice appears to rely on the developer being:

(i) In a financial position to complete the development; and
(ii) Concerned about the effect that the loss of planning permission will have on the value of the land.

Planning Conditions
There are no statutory time limits for a development to be completed so planning conditions or planning obligations imposed by a Section 106 Agreement can be used to ensure that particular elements of the development are at a certain stage before other specified parts of the development can be commenced/used/occupied.  For example, a restriction preventing occupation of a percentage of the open market residential dwellings until the affordable housing units have been completed.  Planning conditions will have been imposed at the time planning permission is granted so this is a preventative measure that can be used by the LPA to try and reduce the risk of developments only being partially completed. 
 
Developers should check carefully any draft planning conditions and any planning obligations when negotiating a Section 106 Agreement, looking in particular for provisions restricting commencement of development or occupation/use of land until other parts of the development have been completed.

Maintenance Notices
A maintenance notice can be used where the condition of land or buildings adversely affects the amenity of an area and the notice can require the owner or occupier of land to carry out works such as:

• Clearance
• Demolition
• Re-building
• External repairs
• Landscaping

The maintenance notice will set out the steps to be taken and a timetable for carrying out the necessary works.  The notice must give the developer at least 28 days until it takes effect.

If works are not carried out in accordance with a maintenance notice then the LPA can prosecute the owner or occupier³ or carry out the works themselves and recover the cost from the owner⁴.

However, developers will have a legitimate defence to a maintenance notice if the unsightly condition of the site is as a result of work being carried out pursuant to a planning permission, for example, where there are builder's materials or soil associated with building work on the site.  This defence is available even where work has ceased on site so this power of serving maintenance notices appears to be of limited use to the LPA except where a site has become unsightly for reasons others than building works, for example, deterioration or vandalism of buildings.  

Discontinuance Orders
A discontinuance order can be served to require the removal or alteration of any building works if it appears to the LPA that this would be beneficial to the "proper planning of their area including the interests of amenity^"5.

A discontinuance order must be confirmed by the Secretary of State so this is a lengthy process, as with completion notices.  Also, if a discontinuance notice is confirmed then the LPA is liable to pay compensation to the owner for the depreciation in land value and expenses involved in complying with the order.  The costs can be substantial so discontinuance orders are rarely used in practice.

Building Act 1984
By innovative use of the Building Act 1984 planning departments and building regulations departments could work together to deal with the issue of partially completed developments.  Relevant powers include requiring the developer to:

• Pull down or remove work that does not comply with building regulations, with an option to alter the building so that it does comply;
• Carry out works to remove the danger with an option to demolish the building or part of building where danger arises due to the condition of a building or structure;
• Carry out works to repair or restore with an option to demolish the building or any part of a building that is in a ruinous or dilapidated condition and is seriously detrimental to the amenities of the neighbourhood

Conclusion
Although LPAs have a number of powers to deal with the problem of partially completed developments they are likely only to use them in exceptional circumstances due to the potential cost and length of time that the process will take.  In addition the objective may not be met.  For example, where a completion notice is served but the developer does not have the finance in place to complete the development then this would just result in a partially completed site which has lost the benefit of planning permission.  Enforcement under the Building Act 1984 would take less time and possibly incur less cost for an LPA but that will only to available to them where work has been done that either does not comply with building regulations or a building on the site becomes dangerous or dilapidated.

¹Section 91 Town and Country Planning Act 1990 as amended by section 51 Planning and Compulsory Purchase Act 2004
²Section 94 Town and Country Planning Act 1990
³Section 216 Town and Country Planning Act 1990
⁴Section 219 Town and Country Planning Act 1990
⁵Section 102 Town and Country Planning Act 1990

For further information on this topic please contact the author.

Sarah Birchley - Solicitor

Email Sarah >>

020 7593 5072

www.wslaw.co.uk

Main page

Joint Ventures: Spreading the Load

The Environmental Damage (Prevention and Remediation) Regulations 2009

Raising the Levy

Heads You Win: The Art to Negotiating Heads of Term

The Cost of Promotion

HIP News