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Winckworth Sherwood

Newsletter

1.  Development in the Downturn 2.  Town and Village Greens: A reminder of the implications of the Commons Act 2006 3.  Property Misdescriptions and the Location of Affordable Housing 4.  How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the       recent case of Risegold v Escala 5.  New dwellings: zero-rating for VAT purposes 6.  Connective Issues: Developers' statutory right to connect into a public sewer

bb133eleftE-Gen: the Regeneration and Development Legal Newsletter

Welcome to the February 2009 edition of E-Gen the newsletter covering legal tips, topics and issues in Regeneration and Development.   If there are any particular issues that you would like more information on then please do let us know using the feedback section below.   Please select from the list below to view this editions articles: Development in the Downturn   Click here to read article>>   Town and Village Greens: A reminder of the implications of the Commons Act 2006   Click here to read article>> Property Misdescriptions and the Location of Affordable Housing   Click here to read article>>   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   Click here to read article>>   New dwellings: zero-rating for VAT purposes   Click here to read article>>   Connective Issues: Developers' statutory right to connect into a public sewer   Click here to read article>>

Mobile and Print-friendly version Contact Us Roger Fitton - Partner Email Roger >> Jane Sewell - Partner   Email Jane >> Louis Robert - Partner   Email Louis >> Links Winckworth Sherwood   Development   Regeneration   Real Estate

 

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We welcome all feedback on our publications.  If you would like to suggest a topic for a future edition or ask for more information on a subject covered here please fill out the box to the right.

This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

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Mobile and Print-friendly version Contact Us Jenny Scott-Russell - Partner Email Jenny >> Neil Morgan - Partner Email Neil Richard Tinham - Partner Email Richard Andrea Squires - Partner Email Andrea

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Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis.

Editable Full Width Title Goes Here. Facilisis, dignissim ve Eniam. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis.

 

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Winckworth Sherwood

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a5d867leftTown and Village Greens: A reminder of the implications of the Commons Act 2006

A recent decision of the Court of Appeal, Lewis R (on the application of) v Redcarr & Cleveland Borough Council (1), Persimmon Homes (Teeside) Limited (2) [2009] ECA CIV3, continues a long line of cases dealing with applications to register land as common land or as a town and village green.  The case serves as a reminder to developers of the importance of making enquiries, when acquiring land, as to previous uses of the land and, when holding land, of enclosing to prevent trespassers and erecting and maintaining appropriate notices indicating its private status. The Law Where land is registered is a town or village green, it is protected by old legislation which effectively means that it cannot be developed.  Under Section 12 of the Inclosure Act 1857 it is an offence to wilfully do anything on a town or village green that would injure the green or interrupt its use or enjoyment as a place for exercise and recreation.  Under Section 29 of the Commons Act 1876 it is deemed to be a public nuisance and therefore an offence, to encroach, disturb, enclose or build on a town or village green, unless this is done "with a view to the better enjoyment of such town or village green". The Commons Registration Act 1965 introduced a regime for identifying common land, town and village greens and rights of common and imposed a duty on county councils to maintain registers.  Registrations had to be made by 31 July 1970 and objections within a further two years.  However the 1965 Act allowed applications to be made for the subsequent amendment of the registers, including where land later becomes a town or village green. Campaigners against development have increasingly used applications for land to be registered as a town or village green as a way of preventing development of the land proceeding. The Commons Act 2006, which comes into force in stages, replaces the 1965 Act and aims to improve and modernise the law. One of the significant changes is to introduce periods of grace the effect of which is that the land no longer needs to have been used for recreational use right up to the date of the application.  Section 15 of the 2006 Act provides that applications may be made for registration of a new town or village green where a significant number of the inhabitants of any locality (or of any neighbourhood within a locality) have indulged, as of right, in lawful sports and pastimes on the land for a period of at least twenty years and one of the following circumstances apply:- the land continues to be used for that purpose at the time of the application to register (Section 15(2)); or the use of the land for that purpose, or the use as of right, ceased before the application to register was made, but after 6 April 2007, in which case the application has to be made within two years of the cessation of use (Section 15(3)); or the use of the land for that purpose, or the use as of right, ceased before 6 April 2007, in which case the application must be made within five years of the cessation of use (Section 15(4)).  This does not apply to any land where planning permission was granted before 23 June 2006 and construction works were started before that date in accordance with the planning permission and the land either has, or will, become permanently unusable for the purposes of lawful sports and pastimes as a result of those works. The Case In, Lewis R (on the application of) v Redcarr & Cleveland Borough Council (1), Persimmon Homes (Teeside) Limited (2) [2009] ECA CIV3, the Court of Appeal upheld the decision of the High Court to refuse an application for judicial review of the decision of the Council not to register part of the land known as Coatham Common, Redcar as a town green under the Commons Act 2006. The appellant and others had previously in 2005 made an application for registration of the land as a town green under the Commons Registration Act 1965. An inspector was appointed to hold a public enquiry and to provide a report and recommendation to the Council. He found that the site had been used as part of a golf club links as far back as the 1920s until the golfing use ceased in 2002 and that parts of the site had also been extensively used by non-golfers for informal recreation, such as dog walking and children's play.  However, he also found that the recreational use was not "as of right" because, during part of the period, notices had been erected and because the recreational use by local people overwhelmingly deferred to the golfing use.  The Council accepted his recommendation and did not register the land as a town green. In 2007 an application was made by the appellant and others under section 15 of the Commons Act 2006. The application was rejected by the Council and an application for judicial review was made but was dismissed by the High Court.  The appellant appealed. The Court of Appeal considered whether the local inhabitants had indulged in lawful sports and pastimes "as of right".  To satisfy this requirement the user by the local inhabitants must be such as to give the outward appearance to a reasonable land owner that the user is being asserted and claimed as of right.  What the users thought that they were doing is not relevant.  It must also be shown that that the user has been "not by force, nor stealth, nor the licence of the owner".  Where there are no competing uses by local inhabitants and the owner, the Court considered that the answer would generally be given by asking whether the rights had been exercised "not by force, nor stealth, nor the licence of the owner". The answer will usually be sufficient to determine whether the user by the local inhabitants is as of right.  Where there are competing uses, the question remains the same: has the user been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land?  However the nature and the extent of the user must be analysed. If the local inhabitants adjust their behaviour to accommodate the competing activities of the owner, they may give the impression to the owner that they are not claiming a right to do what they are doing.  Crucially, in this case, the inspector found that the local inhabitants "overwhelmingly deferred" to the golfers and therefore did not use the land "as of right". The Court of Appeal therefore upheld the decision of the High Court to refuse the application for judicial review. Implications of Section 15 The effect of Section 15 is that a potential development site may be in risk of registration, even though it has not been used for recreational purposes up to the date of the application.  Even after the five year period of grace ends in April 2012, the provisions of Section 15(3) allow a two year period of grace following cessation of use in which applications for registration may be made.  A clear search of the town and village green register made prior to exchange of contracts will indicate whether the land is registered at the time but will not give a purchaser any priority against subsequent successful applications.  Developers buying land should always inspect the land prior to acquisition to see whether there is any evidence of third parties using the site. Developers should also raise enquiries and seek assurances from the landowner that the land has not been previously used for purposes that may support an application for registration as a green, whether or not the landowner also used the land for other purposes.  In practice, the seller may own the land for a short period of time and be unaware of use prior to ownership and may, in any event, be reluctant to provide assurances.  The worthiness of any warranties and assurances that are given will of course depend upon the standing of the seller. Where a developer is unable to satisfy itself unequivocally that the land does not qualify for registration as a green, the developer would have to decide whether or not to buy the land, to buy the land and wait for the period of grace to expire before developing (risking having paid an excessive price if a successful application is made during the period of grace) or to carry out the development immediately and take on the risk of a potential successful registration. A contract to acquire land which is conditional on planning could also be conditional upon no successful applications being made for registration as a green.  However, whilst applications are most likely to be made when third parties become aware of a planning application, they can be made later on and even when development is proceeding.  It may be possible for the contract also to be conditional upon indemnity insurance being available after planning permission is obtained but, if insurance is available, this may be expensive and will be subject to the usual limitations of any indemnity insurance policy. A developer holding land, whether owned outright or under option or contract, should ensure that the land is fenced, or otherwise enclosed, to prevent trespassers, with appropriate notices stating its private status to ensure that third party rights are not acquired.  The fences and notices should be inspected regularly and maintained and it would be wise to keep dated photographic evidence of their existence.     For further information please contact the author.

Mobile and Print-friendly version Author Jane Sewell - Partner Email Jane >>   020 7593 5057   www.wslaw.co.uk    Links Main Page   Development in the Downturn   Property Misdescriptions and the Location of Affordable Housing   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   New dwellings: zero-rating for VAT purposes   Connective Issues: Developers' statutory right to connect into a public sewer

 

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This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

village greens3

Winckworth Sherwood

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675c53leftHow the Court of Appeal interpreted a right of access over adjoining land in favour of a developer

In mid October 2008 the Court of Appeal overturned a High Court decision that interpreted a right of access over neighbouring land strictly. The Court of Appeal instead decided that the right should be interpreted in a way that would allow the owner of that right to make the widest use of the right in a lawful way without being prejudicial to the interests of the owner of the adjoining land.   This is positive news for developers who have rights of entry over adjoining land and who need to exercise those rights to carry out their developments. The decision is also important for owners and prospective purchasers of land that is subject to rights of access. A right of access which can be interpreted widely could have an adverse effect on the owner's right to use and occupy his own land.   The facts of the case The appellant ("Risegold") had bought two single-storey warehouses in London in 2005. The property had the benefit of planning permission to demolish the existing buildings and to build a six storey development containing commercial units on the ground floor and residential units on the upper floor. The property had the benefit of the following right:   "a right to enter (without vehicles) upon such part of the yard at the rear of the Adjoining Property as is necessary for the purpose of carrying out any maintenance repair rebuilding or renewal to the Property subject to the minimum disturbance and inconvenience being caused to the owners and occupiers of the Adjoining Property and to the making good forthwith of all damage caused to the Adjoining Property in the exercise of such right"   The Adjoining Property was owned by Escala Limited ("Escala")   Risegold had sought a declaration that it was entitled to exercise the right for the purpose of carrying out the proposed redevelopment works to its property in accordance with the planning permission.    It was accepted that Risegold's proposed operations were more extensive than "maintenance" and "repair".  The question was whether they were covered by "building or renewal to the Property".   The works that Risegold needed to do in exercising the right to enter the Adjoining Property were the erection of 1500 mm wide fence around the redevelopment site, including over the yard; the erection of scaffolding within the fencing zone; the oversail of a tower crane to be erected on the Property with an arm which would have extended over the roof of the Adjoining Property and the yard; and possible extensions to loading bays overhanging the scaffolding for loading plaster boards on each floor level.   It was anticipated that the intrusion of the various works items would interfere with Escala's Adjoining Property for up to 45 weeks.   Escala's objection was as to the purpose for which Risegold sought to exercise the right, which it contended was not a permitted purpose under the relevant provisions of the Transfer. Risegold contended that the purpose of the entry did fall within the permitted purpose of "rebuilding" or "renewal to the Property".   The decision on appeal The Court of Appeal made three general points on the nature, object and exercise of the right.   First, it considered that the context of the grant of the right of entry was essential.  The right was an easement to enter for limited purposes and not a restrictive covenant entitling Escala to object to the new development.   Secondly, the scope of the right was conditioned by its underlying object. The Court considered that when the right was granted it must have contemplated that the situation of the existing land and buildings would not remain the same forever and that certain activities in relation to the Property could not be properly carried out without access to the Adjoining Property. The terms of the right reflected both the access needs of Risegold and the requirement for protection of Escala against damage etc. Therefore the Court concluded that the right was not confined to the existing structures on the Property.   Thirdly, it concluded that the exercise of the right was subject to important protections for Escala from inconvenience, nuisance and damage.   The Court looked at the wording of the right. They concluded that the word "rebuilding" did not only mean reconstruction of an existing building as originally built.  A more flexible meaning to the right was necessary. The right would permit the entry onto the adjoining land, not only to preserve the existing buildings or to pull down the existing buildings and (a) put upon no new buildings in their place (b) put up buildings similar to the demolished buildings and (c) put up different buildings in the place of the demolished buildings.   If the words did not amount to "rebuilding" they would come under "renewal".   A wider approach was necessary to provide certainty and to enable Risegold to make the fullest use of the right in a manner which was lawful without being prejudicial to the Escala's interest.   Conclusion The effect of the Court of Appeal's wide interpretation of the right meant that Risegold would be able to use land beyond the boundary of its property whilst carrying out the development of its property.  Escala could be deprived from use of part of its land for a significant period without compensation.   Existing rights of access enjoyed by a development property over adjoining property should be considered carefully in light of this recent decision as they maybe more valuable than might first appear. Developers may be able to maximise access for redevelopment or have an argument for minimising any compensation that they might otherwise expect to payable for temporary use of adjoining land.   When granting or reserving new rights of access, care should be taken to ensure that the rights reflect the intentions of the parties and avoid ambiguity and potential litigation.  For further information on this topic please contact the author.

Mobile and Print-friendly version Author Francesca Maran - Solicitor Email Francesca >>   020 7593 5247 www.wslaw.co.uk     Links Main Page   Development in the Downturn   Town and Village Greens: A reminder of the implications of the Commons Act 2006   Property Misdescriptions and the Location of Affordable Housing   New dwellings: zero-rating for VAT purposes   Connective Issues: Developers' statutory right to connect into a public sewer

 

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This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

right of access4

Winckworth Sherwood

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bb133eleftProperty Misdescriptions and the Location of Affordable Housing

The limited availability of credit in the current economic climate has affected both Housebuilders and Housing Associations as the number of property buyers has been reduced.  Many Housebuilders are turning to Housing Associations to acquire unsold units, in addition to the units that they have to provide under Section 106 (Town and Country Planning Act 1990) obligations. In addition, many Housing Associations have set up vehicles for the construction and disposal of open market housing in part to make them less dependent on Grant and often so sale proceeds can be gift aided to benefit the charitable objective of providing more affordable housing. The Seller Beware All sellers of homes must be careful not to make false or misleading statements or representations to private buyers who have exchanged contracts on the basis that the affordable housing at the development is limited to the Section 106 affordable housing commitments and therefore of misrepresentation. A private buyer may have a potential claim for damages if a buyer has relied on a seller's statement or representations which subsequently turn out to be inaccurate. Statutory Legislation Two sets of statutory provisions need to be borne in mind: - 1. Property Misdescription Act 1991 This Act amongst other things prohibits the making of false or misleading statements about property matters in the course of a property development business. It is a criminal offence to make such false or misleading statements either verbally, in writing or by pictures. 2. Consumer Protection Unfair Trading Regulations 2008 The Regulations prohibit a seller from omitting material information from buyers if that omission might cause the buyer to take a different decision i.e. not purchase a property. Material information is defined as "information which the average consumer needs according to the context, to take an informed transactional decision". The Regulations do not prevent sellers from presenting the development in its best possible light provided that this does not mislead the buyer.   Examples of where misrepresentations could be made Conveyance Plans Conveyance plans will often show the location of the Section 106 affordable housing.  If a seller decides at a later stage to sell some or all of the remaining private units for affordable housing the seller must ensure that all site layouts, drawings and conveyance plans that the buyer may have access to are amended to ensure that any additional affordable housing is clearly identified. Legal Sales Pack and Home Information Packs A seller's solicitor will supply buyers with an information pack which includes, amongst other things, title information, planning information and usually (as buyers often ask for this information) the number and location of the affordable housing units at the development. Where additional affordable housing is to be provided at the development then a seller should ensure that the information pack is amended to make certain it clearly identifies the location of the extra affordable housing. It would be advisable to include a statement that additional affordable housing may be provided at the development in the same way sellers retain the ability to revise layout plans and management schemes etc. Furthermore sellers would be well advised to ensure that any buyers who have already exchanged contracts on the basis of the original information pack are informed of affordable housing disposals where they are in addition to those described in the information pack. Replies to Enquiries It is standard for the buyers' solicitors to raise specific enquiries regarding the number and location of the affordable housing units. If a seller anticipates selling additional affordable housing then it is important that any replies to enquiries allow sufficient flexibility to permit the seller to dispose of further units for sale purposes. Concluding remarks The location and distribution of affordable housing is one of the many items sellers need to consider carefully when setting up estates for sale.   For further information please contact the author.

Mobile and Print-friendly version Author Huseyin Huseyin - Solicitor Email Huseyin >>   020 7593 5128 www.wslaw.co.uk      Links Main Page   Development in the Downturn   Town and Village Greens: A reminder of the implications of the Commons Act 2006   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   New dwellings: zero-rating for VAT purposes   Connective Issues: Developers' statutory right to connect into a public sewer

 

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This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

affordable housing5

Winckworth Sherwood

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Section 1    Feugiat consequat vero. Section 2    Feugiat consequat vero. Section 3    Feugiat consequat vero.

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Mobile and Print-friendly version Contact Us Jenny Scott-Russell - Partner Email Jenny >> Neil Morgan - Partner Email Neil Richard Tinham - Partner Email Richard Andrea Squires - Partner Email Andrea

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Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis.

Editable Full Width Title Goes Here. Facilisis, dignissim ve Eniam. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Eniam dolore dignissim, vulputate augue esse quis consequat, vero, dolor iriure te. Hendrerit eu consectetuer ut ad, lobortis vulputate aliquam. Ut dignissim, qui dolor. Dignissim minim qui. Dolore aliquip at diam duis nostrud ex, tation, wisi, erat luptatum tation adipiscing, in. Consectetuer delenit nisl consequat accumsan tincidunt. Suscipit ullamcorper te nisl eros facilisis lobortis, nisl nonummy molestie qui vel duis.

 

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a5d867leftNew dwellings: zero-rating for VAT purposes

Whether a new building qualifies as a dwelling is relevant for VAT purposes as the amount payable for construction services associated with the construction of a dwelling (or dwellings) is zero-rated1  and can therefore present a significant saving where construction is carried out by a taxpayer who is not able to recover input tax, such as a DIY house builder. Although the rules have not changed, the recent case, Bracegirdle v Commissioners for HMRC2, provides guidance on the conditions that must be met for a new building to qualify as a 'dwelling'.  Mr Bracegirdle demolished existing outbuildings at his property and blocked off an existing door between the main house and a new building.  The new building contained an indoor swimming pool, garages and a flat along with storerooms and utilities.   One of the conditions that must be satisfied for a building to qualify as a dwelling is that:   "the separate use, or disposal of the dwelling is not prohibited by the term of any covenant, statutory planning consent or similar provision".3   In the Bracegirdle Case the planning permission was subject to the condition that the flat constructed as part of the new building could only be used for residential purposes ancillary to the existing house and it could only be occupied by visiting friends and family.  As the separate use of the flat was not permitted by the planning permission HMRC decided that the flat did not qualify as a dwelling for VAT purposes and the building works were standard rated. Mr Bracegirdle appealed claiming that the new building was a self contained dwelling and that both separate use and disposal must be prohibited. The planning permission did not prohibit disposal and did not specifically prohibit separate use.  The tribunal agreed that the planning permission did not prevent separate disposal but stated that, as the planning permission required the flat to be ancillary to the residential use of the existing house and even specified the type of occupier (friends and family), separate use was prohibited.  HMRC argued that the new building was either an extension or an annexe to the existing house within the meaning of those words as summarised in the Abercych case (referred to below).  HMRC also submitted that standard rating would apply if either separate use or disposal were prohibited. The VATA 19944  provides that the construction of the following does not qualify as the construction of a dwelling: the conversion, reconstruction or alteration of an existing building any enlargement of, or extension to an existing building, except to the extent that the enlargement creates an additional dwelling or dwellings the construction of an annexe to an existing building In the Bracegirdle Case it was decided that, as the new building could only be used as a subsidiary to the existing house, the new building was an extension, not a dwelling.  The building works would therefore be standard rated, except to the extent that an additional dwelling had been created. The self contained flat did not qualify as a dwelling because, whilst separate disposal was not prohibited, separate use was prohibited. The interpretation of "the separate use, or disposal of the dwelling" was that either separate use or disposal was prohibited. Guidance on whether a new building is classed as an extension or annexe was summarised in the case Abercych Village Association v Commissioners for HMRC5. With regard to an extension the tribunal should consider and weigh up how the factors of the appearance, layout and functions of the building indicate: an independent function from the existing building or a subsidiary function; and the degree of physical integration and physical separation between the new building and existing building. With regard to annexes the tribunal should give consideration to the following factors: association with existing building; whether the new building is supplementary to the existing building; and that there is a degree of physical or functional integration (more than tenuous). Conclusion Even if a new building appears to be a self contained dwelling, it will not be a 'dwelling' for the purposes of VAT if either separate disposal or separate use is prohibited by planning permission.  If the building does not meet this condition to qualify as a 'dwelling' then the rate of VAT chargeable for construction services will be at the standard rate and  not zero-rated.     For further information on this topic please contact the author.     1Section 30 and Item 2(a), Group 5, Schedule 8 of the Value Added Tax Act 1994 ('VATA 1994') 2[2008] WL 5508435 3Note 2(c), Group 5, Schedule 8, VATA 1994 4Note 16, Group 5, Schedule 8, VATA1994 5(2008 Decision Notice No. 20746)

Mobile and Print-friendly version Author Sarah Birchley - Solicitor Email Sarah >>   020 7593 5072 www.wslaw.co.uk     Links Main Page   Development in the Downturn   Town and Village Greens: A reminder of the implications of the Commons Act 2006   Property Misdescriptions and the Location of Affordable Housing   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   Connective Issues: Developers' statutory right to connect into a public sewer

 

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This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

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Winckworth Sherwood

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675c53leftDevelopment in the Downturn

Cash positive and Partnerships Two phrases capture what is required to be able to develop in the current economic climate.  First "cash is king" corny but true and second, "partnership". With the line of credit from financial institutions as tight as it currently is, despite the injection of tax payers' money into lending institutions, sales of new build schemes are proving very hard to get and commencing development on new build schemes perhaps even harder to find than sales.  Both very largely due to tight credit terms. Where sales of new build accommodation are occurring they are heavily discounted from target prices, by 50% or more, and many sales of new build accommodation are now on various forms of shared equity basis. Both the entrepreneurial housebuilding industry and the non-profit making Registered Social Landlords are still perfectly capable of delivering development but for development to happen, certainly over the next 12 to 18 months, contracted payment terms will have to be adjusted and payment terms on any new transactions will have to be more flexible. In addition, the whole housing sector is going to have to look to "back-to-back" acquisitions and development through partnerships with public and publicly accountable organisations and on mixed use schemes (which all London regeneration schemes are) pre-let contracts on non-residential accommodation. The larger and/or taller the schemes the greater are these imperatives.   Re-negotiation of land payments Housebuilders and RSL's are going to need land payment terms that enable them to maintain a commercial return on capital over their accounting periods and, wherever possible, the ability to phase developments in small bite size chunks to reduce their exposure on work in progress.  Without this large regeneration schemes will grind to a halt as the sales market is such that making schemes cash positive is a very tall order indeed so the investment in work in progress too big. The mechanisms required to ensure that schemes become cash positive as early as possible will involve smaller and slower, and possibly fewer payments for land with a greater sharing of risk reflected in overages.    Proper Security for payments Housebuilders and RSL's, in turn, have to recognise that their partners, be they private landowners, regeneration agencies and/or local authorities who are entitled to land receipts are, if development and sales are to progress but payments deferred and/or made contingent, entitled to proper security for their receipts. The cheapest and most sensible form of security to use is the granting of first fixed Legal Charges, but not floating charges, as (provided housebuilders do not breach loan covenants by providing Legal Charges) they are cheap, in comparison to the alternative forms of security such as PCG's or Bonds and can be crafted in such a way that they do not impede proper and efficient development and sales. The giving of Bonds and other financial instruments to support payments for land need to be avoided.  They are hard to obtain and expensive, and a Bond facility is needed by all housebuilders to comply with CML requirements for roads and sewer agreements so that Bond facility should not be wasted in the current economic conditions as security for land payments when there are other cheaper effective means of securing payment. The public sector in particular should recognise this both in land transactions and in the conclusion of Planning Agreements.   Freedom to sell It is imperative that sales teams are not hampered in achieving sales by being restricted on the use of sales incentives, either in terms of quantum or range, and disposal of accommodation on shared equity stakes.    Exchange transactions and sharing market risk transactions One way of encouraging new starts for development, particularly between the public and private sectors, could be transactions that involve exchange of land for development in return for completed units.  This could be a very effective way of bringing land forward for development and easing the current cashflow restrictions. An alternative are transactions structured so payments for land are translated wholesale into transactions involving shares in all sale receipts as and when sales occur.   A little State intervention Two practical steps that Government could do to considerably assist new development are first to enable Social Housing Grant allocations to housing associations to be spent on development earlier than they are currently permitted, such payments to be secured where at all possible and second for title to bare land to be transferred, where there are building contracts and development agreements in place for delivery of the accommodation, without that supply of bare land being subject to Value Added Tax.   Partnerships Partnerships between the public and private sectors are going to be essential to development in the immediate future partly as means to ease cash constraints and partly to harness effectively the talents of the private and public sectors. The partnerships need to harness the asset base of the public and publicly accountable sectors with the build and sales entrepreneurship of the housebuilding industry to mutual advantage. An enormous amount of undeveloped land is owned by the public sector and there remain a large number of housing associations that have huge equity in their stock.  That asset base could be used to secure cash for future development in partnership with the housebuilding industry provided the roles and responsibilities of the partners are clear and unambiguous.  The partnerships could take many forms from arms length contractual structures to joint ventures through limited liability partnerships and other vehicles. For further information on this topic please contact the author.

Mobile and Print-friendly version Author Roger Fitton - Partner Email Roger >>   Winckworth Sherwood   Links Main Page   Town and Village Greens: A reminder of the implications of the Commons Act 2006   Property Misdescriptions and the Location of Affordable Housing   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   New dwellings: zero-rating for VAT purposes   Connective Issues: Developers' statutory right to connect into a public sewer

 
Autem diam nonummy ad nostrud dolor ullamcorper. Magna eu wisi ullamcorper aliquip in feugiat esse eum duis, tincidunt esse, nostrud qui, vulputate, ut illum.

This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

development in downturnprint

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

Articles in this edition:

1.  Development in the Downturn

2.  Town and Village Greens

3.  Property misdescriptions and the disposal of additional affordable housing

4.  How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the       recent case of Risegold v Escala

5.  New dwellings: zero-rating for VAT purposes

6.  Connective Issue
 

Development in the Downturn 
 
Cash positive and Partnerships
Two phrases capture what is required to be able to develop in the current economic climate.  First "cash is king" corny but true and second, "partnership".

With the line of credit from financial institutions as tight as it currently is, despite the injection of tax payers' money into lending institutions, sales of new build schemes are proving very hard to get and commencing development on new build schemes perhaps even harder to find than sales.  Both very largely due to tight credit terms.

Where sales of new build accommodation are occurring they are heavily discounted from target prices, by 50% or more, and many sales of new build accommodation are now on various forms of shared equity basis.

Both the entrepreneurial housebuilding industry and the non-profit making Registered Social Landlords are still perfectly capable of delivering development but for development to happen, certainly over the next 12 to 18 months, contracted payment terms will have to be adjusted and payment terms on any new transactions will have to be more flexible.

In addition, the whole housing sector is going to have to look to "back-to-back" acquisitions and development through partnerships with public and publicly accountable organisations and on mixed use schemes (which all London regeneration schemes are) pre-let contracts on non-residential accommodation.

The larger and/or taller the schemes the greater are these imperatives.

 

Re-negotiation of land payments
Housebuilders and RSL's are going to need land payment terms that enable them to maintain a commercial return on capital over their accounting periods and, wherever possible, the ability to phase developments in small bite size chunks to reduce their exposure on work in progress.  Without this large regeneration schemes will grind to a halt as the sales market is such that making schemes cash positive is a very tall order indeed so the investment in work in progress too big.

The mechanisms required to ensure that schemes become cash positive as early as possible will involve smaller and slower, and possibly fewer payments for land with a greater sharing of risk reflected in overages. 

 

Proper Security for payments
Housebuilders and RSL's, in turn, have to recognise that their partners, be they private landowners, regeneration agencies and/or local authorities who are entitled to land receipts are, if development and sales are to progress but payments deferred and/or made contingent, entitled to proper security for their receipts.

The cheapest and most sensible form of security to use is the granting of first fixed Legal Charges, but not floating charges, as (provided housebuilders do not breach loan covenants by providing Legal Charges) they are cheap, in comparison to the alternative forms of security such as PCG's or Bonds and can be crafted in such a way that they do not impede proper and efficient development and sales.

The giving of Bonds and other financial instruments to support payments for land need to be avoided.  They are hard to obtain and expensive, and a Bond facility is needed by all housebuilders to comply with CML requirements for roads and sewer agreements so that Bond facility should not be wasted in the current economic conditions as security for land payments when there are other cheaper effective means of securing payment.

The public sector in particular should recognise this both in land transactions and in the conclusion of Planning Agreements.

 

Freedom to sell
It is imperative that sales teams are not hampered in achieving sales by being restricted on the use of sales incentives, either in terms of quantum or range, and disposal of accommodation on shared equity stakes. 

 

Exchange transactions and sharing market risk transactions
One way of encouraging new starts for development, particularly between the public and private sectors, could be transactions that involve exchange of land for development in return for completed units.  This could be a very effective way of bringing land forward for development and easing the current cashflow restrictions.

 

An alternative are transactions structured so payments for land are translated wholesale into transactions involving shares in all sale receipts as and when sales occur.

 

A little State intervention
Two practical steps that Government could do to considerably assist new development are first to enable Social Housing Grant allocations to housing associations to be spent on development earlier than they are currently permitted, such payments to be secured where at all possible and second for title to bare land to be transferred, where there are building contracts and development agreements in place for delivery of the accommodation, without that supply of bare land being subject to Value Added Tax.

 

Partnerships
Partnerships between the public and private sectors are going to be essential to development in the immediate future partly as means to ease cash constraints and partly to harness effectively the talents of the private and public sectors.

The partnerships need to harness the asset base of the public and publicly accountable sectors with the build and sales entrepreneurship of the housebuilding industry to mutual advantage.
An enormous amount of undeveloped land is owned by the public sector and there remain a large number of housing associations that have huge equity in their stock.  That asset base could be used to secure cash for future development in partnership with the housebuilding industry provided the roles and responsibilities of the partners are clear and unambiguous.  The partnerships could take many forms from arms length contractual structures to joint ventures through limited liability partnerships and other vehicles.

 

For further information please contact Roger Fitton - rfitton@wslaw.co.uk

 

 

Town and Village Greens

 

A recent decision of the Court of Appeal, Lewis R (on the application of) v Redcarr & Cleveland Borough Council (1), Persimmon Homes (Teeside) Limited (2) [2009] ECA CIV3, continues a long line of cases dealing with applications to register land as common land or as a town and village green.  The case serves as a reminder to developers of the importance of making enquiries, when acquiring land, as to previous uses of the land and, when holding land, of enclosing to prevent trespassers and erecting and maintaining appropriate notices indicating its private status.

The Law
Where land is registered is a town or village green, it is protected by old legislation which effectively means that it cannot be developed.  Under Section 12 of the Inclosure Act 1857 it is an offence to wilfully do anything on a town or village green that would injure the green or interrupt its use or enjoyment as a place for exercise and recreation.  Under Section 29 of the Commons Act 1876 it is deemed to be a public nuisance and therefore an offence, to encroach, disturb, enclose or build on a town or village green, unless this is done "with a view to the better enjoyment of such town or village green".

The Commons Registration Act 1965 introduced a regime for identifying common land, town and village greens and rights of common and imposed a duty on county councils to maintain registers.  Registrations had to be made by 31 July 1970 and objections within a further two years.  However the 1965 Act allowed applications to be made for the subsequent amendment of the registers, including where land later becomes a town or village green. Campaigners against development have increasingly used applications for land to be registered as a town or village green as a way of preventing development of the land proceeding.

The Commons Act 2006, which comes into force in stages, replaces the 1965 Act and aims to improve and modernise the law. One of the significant changes is to introduce periods of grace the effect of which is that the land no longer needs to have been used for recreational use right up to the date of the application. 

Section 15 of the 2006 Act provides that applications may be made for registration of a new town or village green where a significant number of the inhabitants of any locality (or of any neighbourhood within a locality) have indulged, as of right, in lawful sports and pastimes on the land for a period of at least twenty years and one of the following circumstances apply:-

 

• the land continues to be used for that purpose at the time of the application to register (Section 15(2)); or
• the use of the land for that purpose, or the use as of right, ceased before the application to register was made, but after 6 April 2007, in which case the application has to be made within two years of the cessation of use (Section 15(3)); or
• the use of the land for that purpose, or the use as of right, ceased before 6 April 2007, in which case the application must be made within five years of the cessation of use (Section 15(4)).  This does not apply to any land where planning permission was granted before 23 June 2006 and construction works were started before that date in accordance with the planning permission and the land either has, or will, become permanently unusable for the purposes of lawful sports and pastimes as a result of those works.

 

The Case
In, Lewis R (on the application of) v Redcarr & Cleveland Borough Council (1), Persimmon Homes (Teeside) Limited (2) [2009] ECA CIV3, the Court of Appeal upheld the decision of the High Court to refuse an application for judicial review of the decision of the Council not to register part of the land known as Coatham Common, Redcar as a town green under the Commons Act 2006.

The appellant and others had previously in 2005 made an application for registration of the land as a town green under the Commons Registration Act 1965. An inspector was appointed to hold a public enquiry and to provide a report and recommendation to the Council. He found that the site had been used as part of a golf club links as far back as the 1920s until the golfing use ceased in 2002 and that parts of the site had also been extensively used by non-golfers for informal recreation, such as dog walking and children's play.  However, he also found that the recreational use was not "as of right" because, during part of the period, notices had been erected and because the recreational use by local people overwhelmingly deferred to the golfing use.  The Council accepted his recommendation and did not register the land as a town green.

In 2007 an application was made by the appellant and others under section 15 of the Commons Act 2006. The application was rejected by the Council and an application for judicial review was made but was dismissed by the High Court.  The appellant appealed.

The Court of Appeal considered whether the local inhabitants had indulged in lawful sports and pastimes "as of right".  To satisfy this requirement the user by the local inhabitants must be such as to give the outward appearance to a reasonable land owner that the user is being asserted and claimed as of right.  What the users thought that they were doing is not relevant.  It must also be shown that that the user has been "not by force, nor stealth, nor the licence of the owner". 

Where there are no competing uses by local inhabitants and the owner, the Court considered that the answer would generally be given by asking whether the rights had been exercised "not by force, nor stealth, nor the licence of the owner". The answer will usually be sufficient to determine whether the user by the local inhabitants is as of right. 

Where there are competing uses, the question remains the same: has the user been sufficient to bring home to the reasonable owner that the local inhabitants have been asserting a right to use the land?  However the nature and the extent of the user must be analysed. If the local inhabitants adjust their behaviour to accommodate the competing activities of the owner, they may give the impression to the owner that they are not claiming a right to do what they are doing. 

Crucially, in this case, the inspector found that the local inhabitants "overwhelmingly deferred" to the golfers and therefore did not use the land "as of right". The Court of Appeal therefore upheld the decision of the High Court to refuse the application for judicial review.

Implications of Section 15
The effect of Section 15 is that a potential development site may be in risk of registration, even though it has not been used for recreational purposes up to the date of the application.  Even after the five year period of grace ends in April 2012, the provisions of Section 15(3) allow a two year period of grace following cessation of use in which applications for registration may be made. 

A clear search of the town and village green register made prior to exchange of contracts will indicate whether the land is registered at the time but will not give a purchaser any priority against subsequent successful applications. 

Developers buying land should always inspect the land prior to acquisition to see whether there is any evidence of third parties using the site. Developers should also raise enquiries and seek assurances from the landowner that the land has not been previously used for purposes that may support an application for registration as a green, whether or not the landowner also used the land for other purposes.  In practice, the seller may own the land for a short period of time and be unaware of use prior to ownership and may, in any event, be reluctant to provide assurances.  The worthiness of any warranties and assurances that are given will of course depend upon the standing of the seller.

Where a developer is unable to satisfy itself unequivocally that the land does not qualify for registration as a green, the developer would have to decide whether or not to buy the land, to buy the land and wait for the period of grace to expire before developing (risking having paid an excessive price if a successful application is made during the period of grace) or to carry out the development immediately and take on the risk of a potential successful registration.

A contract to acquire land which is conditional on planning could also be conditional upon no successful applications being made for registration as a green.  However, whilst applications are most likely to be made when third parties become aware of a planning application, they can be made later on and even when development is proceeding.  It may be possible for the contract also to be conditional upon indemnity insurance being available after planning permission is obtained but, if insurance is available, this may be expensive and will be subject to the usual limitations of any indemnity insurance policy.

A developer holding land, whether owned outright or under option or contract, should ensure that the land is fenced, or otherwise enclosed, to prevent trespassers, with appropriate notices stating its private status to ensure that third party rights are not acquired.  The fences and notices should be inspected regularly and maintained and it would be wise to keep dated photographic evidence of their existence.

 

For further information please contact Jane Sewell - jsewell@wslaw.co.uk

 

 

Property misdescriptions and the disposal of additional affordable housing

The limited availability of credit in the current economic climate has affected both Housebuilders and Housing Associations as the number of property buyers has been reduced.  Many Housebuilders are turning to Housing Associations to acquire unsold units, in addition to the units that they have to provide under Section 106 (Town and Country Planning Act 1990) obligations.

In addition, many Housing Associations have set up vehicles for the construction and disposal of open market housing in part to make them less dependent on Grant and often so sale proceeds can be gift aided to benefit the charitable objective of providing more affordable housing.

The Seller Beware
All sellers of homes must be careful not to make false or misleading statements or representations to private buyers who have exchanged contracts on the basis that the affordable housing at the development is limited to the Section 106 affordable housing commitments and therefore of misrepresentation.

A private buyer may have a potential claim for damages if a buyer has relied on a seller's statement or representations which subsequently turn out to be inaccurate.

Statutory Legislation
Two sets of statutory provisions need to be borne in mind: -

1. Property Misdescription Act 1991
This Act amongst other things prohibits the making of false or misleading statements about property matters in the course of a property development business.

It is a criminal offence to make such false or misleading statements either verbally, in writing or by pictures.

2. Consumer Protection Unfair Trading Regulations 2008
The Regulations prohibit a seller from omitting material information from buyers if that omission might cause the buyer to take a different decision i.e. not purchase a property.

Material information is defined as "information which the average consumer needs according to the context, to take an informed transactional decision".

The Regulations do not prevent sellers from presenting the development in its best possible light provided that this does not mislead the buyer.

 

Examples of where misrepresentations could be made

Conveyance Plans
Conveyance plans will often show the location of the Section 106 affordable housing.  If a seller decides at a later stage to sell some or all of the remaining private units for affordable housing the seller must ensure that all site layouts, drawings and conveyance plans that the buyer may have access to are amended to ensure that any additional affordable housing is clearly identified.

Legal Sales Pack and Home Information Packs
A seller's solicitor will supply buyers with an information pack which includes, amongst other things, title information, planning information and usually (as buyers often ask for this information) the number and location of the affordable housing units at the development.

Where additional affordable housing is to be provided at the development then a seller should ensure that the information pack is amended to make certain it clearly identifies the location of the extra affordable housing. It would be advisable to include a statement that additional affordable housing may be provided at the development in the same way sellers retain the ability to revise layout plans and management schemes etc.

Furthermore sellers would be well advised to ensure that any buyers who have already exchanged contracts on the basis of the original information pack are informed of affordable housing disposals where they are in addition to those described in the information pack.

Replies to Enquiries
It is standard for the buyers' solicitors to raise specific enquiries regarding the number and location of the affordable housing units. If a seller anticipates selling additional affordable housing then it is important that any replies to enquiries allow sufficient flexibility to permit the seller to dispose of further units for sale purposes.

Concluding remarks
The location and distribution of affordable housing is one of the many items sellers need to consider carefully when setting up estates for sale.

 

 

For further information please contact Huseyin Huseyin - hhuseyin@wslaw.co.uk

 

How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala

 

In mid October 2008 the Court of Appeal overturned a High Court decision that interpreted a right of access over neighbouring land strictly. The Court of Appeal instead decided that the right should be interpreted in a way that would allow the owner of that right to make the widest use of the right in a lawful way without being prejudicial to the interests of the owner of the adjoining land.

 

This is positive news for developers who have rights of entry over adjoining land and who need to exercise those rights to carry out their developments. The decision is also important for owners and prospective purchasers of land that is subject to rights of access. A right of access which can be interpreted widely could have an adverse effect on the owner's right to use and occupy his own land.

 

The facts of the case

The appellant ("Risegold") had bought two single-storey warehouse in London in 2005. The property had the benefit of planning permission to demolish the existing property and to build a six storey development containing commercial units on the ground floor and residential units on the upper floor. The property had the benefit of the following right:

 

"a right to enter (without vehicles) upon such part of the yard at the rear of the Adjoining Property as is necessary for the purpose of carrying out any maintenance repair rebuilding or renewal to the Property subject to the minimum disturbance and inconvenience being caused to the owners and occupiers of the Adjoining Property and to the making good forthwith of all damage caused to the Adjoining Property in the exercise of such right"

 

The Adjoining Property was owned by Escala Limited ("Escala")

 

Risegold had sought a declaration that it was entitled to exercise the right for the purpose of carrying out the proposed redevelopment works to its property in accordance with the planning permission. 

 

It was accepted that Risegold's proposed operations were more extensive than "maintenance" and "repair".  The question was whether they were covered by "building or renewal to the Property".

 

The works that Risegold needed to do in exercising the right to enter the Adjoining Property were the erection of 1500 mm wide fence around the redevelopment site, including over the yard; the erection of scaffolding within the fencing zone; the oversail of a tower crane to be erected on the Property with an arm which would have extended over the roof of the Adjoining Property and the yard; and possible extensions to loading bays overhanging the scaffolding for loading plaster boards on each floor level.

 

It was anticipated that the intrusion of the various works items would interfere with Escala's Adjoining Property for up to 45 weeks.
 
Escala's objection was as to the purpose for which Risegold sought to exercise the right, which it contended was not a permitted purpose under the relevant provisions of the Transfer. Risegold contended that the purpose of the entry did fall within the permitted purpose of "rebuilding" or "renewal to the Property".

 

The decision on appeal

The Court of Appeal made three general points on the nature, object and exercise of the right.

 

First, it considered that the context of the grant of the right of entry was essential.  The right was an easement to enter for limited purposes and not a restrictive covenant entitling Escala to object to the new development.

 

Secondly, the scope of the right was conditioned by its underlying object. The Court considered that when the right was granted it must have contemplated that the situation of the existing land and buildings would not remain the same forever and that certain activities in relation to the Property could not be properly carried out without access to the Adjoining Property. The terms of the right reflected both the access needs of Risegold and the requirement for protection of Escala against damage etc. Therefore the Court concluded that the right was not confined to the existing structures on the Property.

 

Thirdly, it concluded that the exercise of the right was subject to important protections for Escala from inconvenience, nuisance and damage.

 

The Court looked at the wording of the right. They concluded that the word "rebuilding" did not only mean reconstruction of an existing building as originally built.  A more flexible meaning to the right was necessary.

 

The right would permit the entry onto the adjoining land, not only to preserve the existing buildings or to pull down the existing buildings and (a) put upon no new buildings in their place (b) put up buildings similar to the demolished buildings and (c) put up different buildings in the place of the demolished buildings.

 

If the words did not amount to "rebuilding" they would come under "renewal".

 

A wider approach was necessary to provide certainty and to enable Risegold to make the fullest use of the right in a manner which was lawful without being prejudicial to the Escala's interest.

 

Conclusion

The effect of the Court of Appeal's wide interpretation of the right meant that Risegold would be able to use land beyond the boundary of its property whilst carrying out the development of its property.  Escala could be deprived from use of part of its land for a significant period without compensation.

 

Existing rights of access enjoyed by a development property over adjoining property should be considered carefully in light of this recent decision as they maybe more valuable than might first appear. Developers may be able to maximise access for redevelopment or have an argument for minimising any compensation that they might otherwise expect to payable for temporary use of adjoining land.

 

When granting or reserving new rights of access, care should be taken to ensure that the rights reflect the intentions of the parties and avoid ambiguity and potential litigation.

 

For further information on this topic please contact Francesca Maran - fmaran@wslaw.co.uk

 

New dwellings: zero-rating for VAT purposes

 

Whether a new building qualifies as a dwelling is relevant for VAT purposes as the amount payable for construction services associated with the construction of a dwelling (or dwellings) is zero-rated  and can therefore present a significant saving where construction is carried out by a taxpayer who is not able to recover input tax, such as a DIY house builder.

Although the rules have not changed, the recent case, Bracegirdle v Commissioners for HMRC , provides guidance on the conditions that must be met for a new building to qualify as a 'dwelling'.

Mr Bracegirdle demolished existing outbuildings at his property and blocked off an existing door between the main house and a new building.  The new building contained an indoor swimming pool, garages and a flat along with storerooms and utilities.  

One of the conditions that must be satisfied for a building to qualify as a dwelling is that:

 

"the separate use, or disposal of the dwelling is not prohibited by the term of any covenant, statutory planning consent or similar provision".

 

In the Bracegirdle Case the planning permission was subject to the condition that the flat constructed as part of the new building could only be used for residential purposes ancillary to the existing house and it could only be occupied by visiting friends and family.  As the separate use of the flat was not permitted by the planning permission HMRC decided that the flat did not qualify as a dwelling for VAT purposes and the building works were standard rated.

Mr Bracegirdle appealed claiming that the new building was a self contained dwelling and that both separate use and disposal must be prohibited. The planning permission did not prohibit disposal and did not specifically prohibit separate use.  The tribunal agreed that the planning permission did not prevent separate disposal but stated that, as the planning permission required the flat to be ancillary to the residential use of the existing house and even specified the type of occupier (friends and family), separate use was prohibited. 

HMRC argued that the new building was either an extension or an annexe to the existing house within the meaning of those words as summarised in the Abercych case (referred to below).  HMRC also submitted that standard rating would apply if either separate use or disposal were prohibited.

The VATA 1994  provides that the construction of the following does not qualify as the construction of a dwelling:

 

• the conversion, reconstruction or alteration of an existing building
• any enlargement of, or extension to an existing building, except to the extent that the enlargement creates an additional dwelling or dwellings
• the construction of an annexe to an existing building

In the Bracegirdle Case it was decided that, as the new building could only be used as a subsidiary to the existing house, the new building was an extension, not a dwelling.  The building works would therefore be standard rated, except to the extent that an additional dwelling had been created. The self contained flat did not qualify as a dwelling because, whilst separate disposal was not prohibited, separate use was prohibited. The interpretation of "the separate use, or disposal of the dwelling" was that either separate use or disposal was prohibited.

Guidance on whether a new building is classed as an extension or annexe was summarised in the case Abercych Village Association v Commissioners for HMRC.

With regard to an extension the tribunal should consider and weigh up how the factors of the appearance, layout and functions of the building indicate:

• an independent function from the existing building or a subsidiary function; and
• the degree of physical integration and physical separation between the new building and existing building.

With regard to annexes the tribunal should give consideration to the following factors:

• association with existing building;
• whether the new building is supplementary to the existing building; and
• that there is a degree of physical or functional integration (more than tenuous).

Conclusion
Even if a new building appears to be a self contained dwelling, it will not be a 'dwelling' for the purposes of VAT if either separate disposal or separate use is prohibited by planning permission.  If the building does not meet this condition to qualify as a 'dwelling' then the rate of VAT chargeable for construction services will be at the standard rate and  not zero-rated.

For further information on this topic please contact Sarah Birchley - sbirchley@wslaw.co.uk

 

Connective Issue

 

A recent case in the Court of Appeal reinforces the established position that land-owning developers have a statutory right to connect into a public sewer.  Anthony Woolley explains.

 

Right connection

A land-owner has a right to connect his property to the public sewer pursuant to section 106 of the Water Industry Act 1991 ("the Act").  The owner must give the sewer undertaker prior notice of his intention to make a connection, and if the undertaker objects, it must do so within 21 days of receiving the notice.

 

Under the Act, the grounds on which an undertaker can object to a connection are limited to the mode of construction or the condition of the owner's sewer, in particular that it:

• is not to a standard reasonably required by the undertaker; or
• is such that the proposed connection would be prejudicial to the sewerage system.
  

The Office of Water Services ("OFWAT") is the body responsible for determining whether refusals of connection requests are indeed reasonable.

 

In The Post Office v.Yorkshire Water, OFWAT found that it is not reasonable for a sewer undertaker to refuse a new connection based solely on the fact that there was a lack of capacity in the public sewer.  This case has formed the basis for all subsequent OFWAT decisions for well over a decade.

 

Recent flux

The established position was recently unsettled by a case in the High Court. 

 

In Barratt Homes Limited v. Dwr Cymru Cyfyngedig, a developer submitted for planning permission for a development comprising 98 dwellings and a school.  As part of its planning programme, the developer commissioned the local sewer undertaker to conduct an assessment of the connection proposal.  The assessment confirmed that a new connection for the development at the location preferred by the developer would result in the sewer becoming overloaded, and that this in turn would cause harm to the environment.

 

Six months passed.  The planning application obtained consent, subject to a condition whereby a drainage improvement scheme was required to be approved by the planning authority and carried out by the developer.

 

Very shortly thereafter the developer served a section 106 notice on the sewer undertaker.  The sewer undertaker responded a little over a month later, giving consent to the connection in principle, but not at the location preferred by the developer.  The sewer undertaker then laid concrete at the developer's preferred location in order to prevent the developer making the connection.

 

The planning authority discharged the drainage improvement condition of the planning permission without consulting the sewer undertaker.  The developer commenced construction of the development.  The school opened and a large number of houses sold.

 

The developer applied to the High Court for a declaration that it was legally entitled to connect to the sewer at its preferred location.  The sewer undertaker refuted the claim, repeating its assertion that a new connection at that location would overload the sewer and increase the risk of harm to the environment if no improvement works were carried out.

 

The High Court denied the developer's claim.

 

It held that the undertaker was permitted to refuse permission on the grounds that it was prejudicial to the sewerage system.  The Court stated that it was bound to follow an earlier court decision made in relation to a claim brought under the now repealed Public Health Act 1936, where an application for a connection to a sewer at a particular point was denied on the "prejudicial" ground.  The Court in the case at hand held that a similar interpretation should be applied to provisions of the Water Industry Act 1991, as notwithstanding the repeal, the wording of the relevant provisions of both acts were similar.

 

In addition, and perhaps more importantly, the Court held that it would be "objectionable that the statute should be interpreted in such a way that the undertaker cannot use the power of refusal to a connection so as to prevent potentially deleterious environmental consequences".

 

The Court's decision had several consequences.  Firstly, it allowed sewer undertakers to cry "environment" in order to avoid costly capacity upgrades.  Secondly, and as a corollary, it meant that developers would have to spend additional funds in carrying out environmental assessments in order to dispute undertaker's claims.  Thirdly, it allowed sewer undertakers to dictate to developers as to where connections should be located, including within land in the ownership of third parties.

 

Down the Drain

The developer took its case to the Court of Appeal.

 

The Court upheld the developer's appeal.  It held that the statute was clear in that the grounds for refusing a connection were narrowly defined.  It explained that had Parliament wished for the grounds of refusal to be wider (for example, so as to include refusal based on location, capacity or environmental grounds), the drafting of the statute would have catered for such.  The proper forum for addressing any concerns of the sewer undertaker was the planning process.

 

Ebb and Flow

The case, although unusual due to the discharge of the sewer condition by the local planning authority without consulting the sewer undertaker, is primarily important as it provides judicial affirmation of OFWAT's stance based on its decision in The Post Office v. Yorkshire Water – sewer undertakers cannot reasonably refuse connections on any grounds other than those set out in the statute.

 

However, it is also notable as it reminds all of us in the development industry that it is important to start consultation with statutory undertakers as early as possible during the planning stage of any development programme, in order to address undertaker's concerns and thereby reduce the likelihood of nasty surprises arising later.

 

It is not known whether Dwr Cymru Cyfyngedig intend on appealing to the House of Lords.  Please be sure to look out for updates in future issues of E-Gen.

 

For further information please contact Anthony Woolley - awoolley@wslaw.co.uk

Page8

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Page9

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bb133eleftConnective Issues: Developers' statutory right to connect into a public sewer

A recent case in the Court of Appeal reinforces the established position that land-owning developers have a statutory right to connect into a public sewer.   Right connection A land-owner has a right to connect his property to the public sewer pursuant to section 106 of the Water Industry Act 1991 ("the Act").  The owner must give the sewer undertaker prior notice of his intention to make a connection, and if the undertaker objects, it must do so within 21 days of receiving the notice.   Under the Act, the grounds on which an undertaker can object to a connection are limited to the mode of construction or the condition of the owner's sewer, in particular that it: is not to a standard reasonably required by the undertaker; or is such that the proposed connection would be prejudicial to the sewerage system. The Office of Water Services ("OFWAT") is the body responsible for determining whether refusals of connection requests are indeed reasonable.   In The Post Office v. Yorkshire Water, OFWAT found that it is not reasonable for a sewer undertaker to refuse a new connection based solely on the fact that there was a lack of capacity in the public sewer.  This case has formed the basis for all subsequent OFWAT decisions for well over a decade.   Recent flux The established position was recently unsettled by a case in the High Court.    In Barratt Homes Limited v. Dwr Cymru Cyfyngedig, a developer submitted for planning permission for a development comprising 98 dwellings and a school.  As part of its planning programme, the developer commissioned the local sewer undertaker to conduct an assessment of the connection proposal.  The assessment confirmed that a new connection for the development at the location preferred by the developer would result in the sewer becoming overloaded, and that this in turn would cause harm to the environment.   Six months passed.  The planning application obtained consent, subject to a condition whereby a drainage improvement scheme was required to be approved by the planning authority and carried out by the developer.   Very shortly thereafter the developer served a section 106 notice on the sewer undertaker.  The sewer undertaker responded a little over a month later, giving consent to the connection in principle, but not at the location preferred by the developer.  The sewer undertaker then laid concrete at the developer's preferred location in order to prevent the developer making the connection.   The planning authority discharged the drainage improvement condition of the planning permission without consulting the sewer undertaker.  The developer commenced construction of the development.  The school opened and a large number of houses sold.   The developer applied to the High Court for a declaration that it was legally entitled to connect to the sewer at its preferred location.  The sewer undertaker refuted the claim, repeating its assertion that a new connection at that location would overload the sewer and increase the risk of harm to the environment if no improvement works were carried out.   The High Court denied the developer's claim.   It held that the undertaker was permitted to refuse permission on the grounds that it was prejudicial to the sewerage system.  The Court stated that it was bound to follow an earlier court decision made in relation to a claim brought under the now repealed Public Health Act 1936, where an application for a connection to a sewer at a particular point was denied on the "prejudicial" ground.  The Court in the case at hand held that a similar interpretation should be applied to provisions of the Water Industry Act 1991, as notwithstanding the repeal, the wording of the relevant provisions of both acts were similar.   In addition, and perhaps more importantly, the Court held that it would be "objectionable that the statute should be interpreted in such a way that the undertaker cannot use the power of refusal to a connection so as to prevent potentially deleterious environmental consequences".   The Court's decision had several consequences.  Firstly, it allowed sewer undertakers to cry "environment" in order to avoid costly capacity upgrades.  Secondly, and as a corollary, it meant that developers would have to spend additional funds in carrying out environmental assessments in order to dispute undertaker's claims.  Thirdly, it allowed sewer undertakers to dictate to developers as to where connections should be located, including within land in the ownership of third parties.   Down the Drain The developer took its case to the Court of Appeal.   The Court upheld the developer's appeal.  It held that the statute was clear in that the grounds for refusing a connection were narrowly defined.  It explained that had Parliament wished for the grounds of refusal to be wider (for example, so as to include refusal based on location, capacity or environmental grounds), the drafting of the statute would have catered for such.  The proper forum for addressing any concerns of the sewer undertaker was the planning process.   Ebb and Flow The case, although unusual due to the discharge of the sewer condition by the local planning authority without consulting the sewer undertaker, is primarily important as it provides judicial affirmation of OFWAT's stance based on its decision in The Post Office v. Yorkshire Water – sewer undertakers cannot reasonably refuse connections on any grounds other than those set out in the statute.   However, it is also notable as it reminds all of us in the development industry that it is important to start consultation with statutory undertakers as early as possible during the planning stage of any development programme, in order to address undertaker's concerns and thereby reduce the likelihood of nasty surprises arising later.   It is not known whether Dwr Cymru Cyfyngedig intend on appealing to the House of Lords.  Please be sure to look out for updates in future issues of E-Gen.   For further information please contact the author.

Mobile and Print-friendly version Author Anthony Woolley - Solicitor Email Anthony >>   020 7593 5105 www.wslaw.co.uk      Links Main Page   Development in the Downturn   Town and Village Greens: A reminder of the implications of the Commons Act 2006   Property Misdescriptions and the Location of Affordable Housing   How the Court of Appeal interpreted a right of access over adjoining land in favour of a developer in the recent case of Risegold v Escala   New dwellings: zero-rating for VAT purposes

 

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This e-bulletin is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subjects in question.

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