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ACP SGS 2

Terms

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When might an Article 4 Direction be used?

Where a local authority uses it to disapply the GPDO in a conservation area

What is a CLEUD?

Certificate of Lawfulness of Existing Use or Development – looking for over 10 years’ use in breach

Re periods of enforcement, what is the period for enforcement if something is built without planning permission?

4 years

Re periods of enforcement, what is the period for enforcement if something is built with planning permission, but a condition of the planning permission is breached?
10 years from date of breach

Re periods of enforcement, what is the period for enforcement where there has been a material change of use without planning permission?

10 years from date of breach

What is the period of enforcement for Building Regs?
Unlimited enforcement

What should you note in relation to previous planning refusals revealed by the CON 29R
These would indicate the sorts of uses that the local authority is not willing to grant planning permission for.

Decisions may adversely affect the development potential, and therefore the value of the property.

What should you note in connection with specific grants of planning permission?
The grant is to the person/entity only and will not alter the underlying use class, it does so only temporarily in respect of the individual.
If the facts name two different entities as being in occupation of a property for a given period of time, what should you consider?
Check if the first entity has changed its name to that of the "second" - you could be dealing with the same legal entity.
Do requisite periods of use need to be established by one occupier?
No, not if it can be shown that a series of occupiers have built up the requisite number of years of continuous use, that is sufficient.
What should you do if you think you can establish the requisite period of continued use?
It is possible to apply for a CLEUD to prevent any enforcement action.
What is the issue re submitting a CLEUD when the requisite number of years have not been made out conclusively?
The local authority will become aware of the current use (in breach) and may take enforcement action.
What practical steps should you do in relation to a s. 106 agreement?
1. Obtain a copy of the agreement;

2. Advise on nature and extent of any conditions.

3. Ask seller's solicitor to confirm which s. 106 obligations are outstanding and which have been complied with (ask for evidence)

4. Note: can be modified - s. 106A(3) - (4).





Where should you look to see whether building regulations have been obtained?
Answer can be found in CON29R (1) - F - H.
What should you consider if building regulations have not been obtained?
Gap between purchase and demolition

During gap risk of enforcement action

Buyer might be required to knock down sooner than planned which will have cost implications.

Buyer might accept the risk but needs to be informed.





Why do authorities impose s. 106 agreements?
Concerns re the impact a development may have on the local infrastructure.
Why are s. 106 requirements not included as conditions in planning permission documents?
Conditions in planning permission documents relate to the development itself, e.g. type of materials. Obligations in a s. 106 agreement can extend to matters outside of the development.
What practical guidance can you given to an Buyer who is purchasing land that was subject to a s. 106 Agreement?
Advise that a surveyor could be sent down with a copy of the s. 106 Agreement to ascertain what is in place at the site.
What three high level considerations should you have in mind whenever you are looking at a site?
Planning permission:

- Building works; and
- Change of use.

Building regulations.




What two types of a planning permission can be requested?
Outline or detailed
What could a local authority require in connection with a grant of planning permission?
The LA could impost a Community Infrastructure Levy (CIL)
What is a Community Infrastructure Levy?
New planning charge that can be used to generate fund for infrastructure, it is discretionary.
What conditions are required before an LA can impose the Community Infrastructure Levy?
1. Must have an up-to-date local planning policies adopted within their administrative area; and

2. Must have prepared and formally adopted a Charging Schedule setting out the arrangements for the charge of CIL in their area.

What must an LA do annually in relation to its community infrastructure levy?
Produce an annual report detailing:

1. total receipts;
2. total expenditure;
3. summary of items of infrastructure to which receipts were applied.



What sort of evidence will help to obtain a CLUED?
1. Statutory declarations from occupiers/owners
2. Tenancy documentation
3. Bills
4. Details from the Rating Register
5. Photographs





If a seller thinks that land is clean, will a seller want to say this?
No, as it could be sued for the cost of any potential clean-up and this is too high an amount to risk.

Is contamination only chemicals?

No, it could be an invasive plant such as Japanese Knotweed
What should a clause covering VAT cover in a contract?
1. Sums payable exclusive of VAT;
2. Obligation to pay includes an obligation to pay VAT;
3. If taxable supply is made, a valid VAT invoice is to be issued.

When is a landlord required to serve a s. 146 notice?
If the landlord intends to forfeit the lease because the tenant is in breach of covenant (other than the covenant to pay rent).
Does a landlord need to serve a s. 146 notice if a tenant is in rent arrears?
No. A s. 146 notice is not required the tenant has breached the covenant to pay rent
What must a s. 146 notice specify?
1. the breach complained of;

2. if the breach is remediable, require the tenant to remedy it; and

3. require the tenant to monetarily compensate the landlord.



Discuss when a landlord might or might not wish to use the remedy of forfeiture.
Attractive if market rents are currently higher than the passing rent and another tenant can be found with ease.

Less attractive in a depressed market as the landlord may be left with a vacant property.

Can a tenant apply for relief from forfeiture? If so, when?
Yes, any time while the landlord is taking proceedings against the tenant to forfeit the lease, or peaceably re-entering the property.
How long does a tenant's right to relief from forfeiture last?
This right lasts for up to 6 months after forfeiture has taken place, by making a court application. The tenant has a right to seek relief from forfeiture for both remediable and irremediable breaches.
When will a tenant generally be granted relief from forfeiture for non-payment of rent?
If all arrears and costs are paid.
When is a court unlikely to grant relief from forfeiture?
If a new lease has been granted reasonably and injustice would be caused by the grant of relief.
Under what section of the 1954 Act can a tenant serve notice on the landlord to request a new tenancy?
s. 26 LTA 1954
What should you note in relation to notices made in connection with a new tenancy under the security of tenure provisions?
Notice must be served on the landlord at its registered office.
Can parties entering into a new lease in accordance with the security of tenure provisions request an uplift in rent.
Yes this is permitted. Parties should agree the amount of rent themselves informally. Failing that court will decide - evidence of increased rents will be required for the landlord to convince the court.
If the landlord is not opposing the new lease and applies for an interim rent, how will the rent be calculated?
The rent will be calculated at market rates.
What should a landlord do if a tenant submits a s. 26 application for a new lease?
Serve a counter notice within two months indicating whether it is going to oppose the tenancy.

Notices resisting the new lease are known as hostile notices.

What will a landlord need to if it submits a hostile notice in relation to an application for a new lease?
Give a reason for the refusal in accordance with s. 30(1)(d).
If a landlord wishes to refuse a request for a new lease on the basis that it is providing alternative accommodation, what will the landlord need to show?
Show that the alternative accommodation is reasonable in all the circumstances having regard to the tenant's business, goodwill, etc.
What should you note in relation to document sent by way of notice under a contract?
Does the contract contain any notice provisions? Failure to send in accordance with the agreed notice provision will invalidate the notice.
Minor errors in a break notice which would not mislead a reasonable person will not render the notice
invalid.
Mannai v Eagle
Mannai v Eagle
Minor errors in a break notice which would not mislead a reasonable person will not render the notice
invalid.
Is sending a break notice using the wrong class of post, e.g. first class rather than recorded delivery, likely to amount to minor error?
Probably not.
M&S plc v BNP Paribas
CoA confirmed that an express clause is required for a tenant to be able to recover any rent or service charge paid in advance on exercise of a break clause.

No clause = no entitlement.

CoA confirmed that an express clause is required for a tenant to be able to recover any rent or service charge paid in advance on exercise of a break clause.

No clause = no entitlement.



M&S plc v BNP Paribas

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