Real Estate Bulletin: Autumn 2015

This quarter we have case law updates on

Definitive map - public right of way

Definitive map - dedication of a highway

Development - rights of light - damages

Development - consent covenants

Relief from forfeiture

Service charge recovery for improvement works

Judicial review - deadline for challenge

Judicial review - "publication" of development consent order

Community Infrastructure Levy

Sustainable drainage

Case Law Update

Definitive map - public right of way

Key points:

Dating back as far as the seventeenth century, the In closure Acts were a series of statutes that enabled 'awards' to be made to enclose open fields and common land. Such awards vested land over which the public previously had rights of access in private ownership, so provision had to be made for rights of way to be created over the enclosed land

This can cause problems for those wishing to sell or buy land for development

Practical implications:

Whilst the issues in the case may not seem to be that relevant today, it is estimated that there are between 500 and 1,000 other footpaths and bridleways created by In closure Commissioners which are not currently recorded on the relevant definitive map. Even where there is nothing apparent on the ground, land may be subject to rights which can make life difficult for landowners and developers

Definitive map - dedication of a highway:

Ali v Secretary of State for the Environment, Food and Rural Affairs

Key points:

There is a statutory presumption that a way over land is deemed to have been dedicated as a highway where the public has used it as of right and without interruption for 20 years

The landowner can defeat this presumption by providing evidence that there was no intention to dedicate the way as a highway

Practical implications:

The case serves as a useful reminder to landowners that they need to take steps to avoid rights of way over their land becoming dedicated, but - depending on the particular circumstances - that temporary, inconsequential interruption may not be enough.

Landowners should consider erecting clear and visible signage as well as physical interruption, but bear in mind that taking such measures may have an unintended consequence - as the erection of the gates did for Mr Ali - by prompting an interested party to make a claim the right of way is a public one that should be noted on the definitive map.

A less confrontational, and arguably evidentially safer, way to proceed is for the landowner to deposit a map at the appropriate council along with a statement indicating what way (if any) the landowner admits to as having been dedicated as highways

Development - rights of light - damages: Scott v Aimiuwu

Key points:

The way courts approach claims for interference with property rights has changed following a recent Supreme Court decision that reviewed and revised the basis on which remedies (injunctions or damages) will be awarded.

This case is the first to have come to court since then.

The decision, whilst only at county court level, may be of comfort to developers

Practical implications:

In the decision in Coventry v Lawrence, the Supreme Court criticised the way the courts had in recent times been too ready to grant injunctions (including those requiring the demolition of completed, pre-let properties) when damages would have been an adequate and appropriate remedy.

Against this context, the county court judge in this case decided that it would be oppressive and punitive to order demolition works to a house.

Other factors the judge took into account were that only secondary accommodation was affected and that Mr and Mrs A were under the misguided impression that because they had planning permission for the extension, they were entitled to proceed (ie they were not acting with flagrant disregard to Mr and Mrs S's objections).

Developers still need to act reasonably when schemes interfere with adjoining owners' rights and should always take expert advice on the nature and extent of the impact of the works on neighbouring buildings, but this decision may be of some comfort that they cannot be held to ransom for a share of the profits. On the flip side, aggrieved neighbours should consider taking urgent action to bring proceedings for an injunction if they feel damages would not be a sufficient remedy

Development - consent covenants: Re Cook's Application (21 Shawfield Park)Key points:

When a seller sells part of its land, such as a building plot at the bottom of the garden, it is common to impose a covenant that the buyer cannot build on the land without getting the plans and drawings approved by the seller

There is a lot of case law on whether a buyer is required to obtain approval from subsequent owners of the seller's retained land

A recent case looks at what happens when the original seller has died

Practical implications:

Nowadays, when a seller sells part of its title and imposes covenants against building without consent, you would expect it to be clear from the drafting exactly whose consent the buyer needs and, better still, whether that person needs to behave reasonably in giving or refusing consent. However, it's not uncommon to find titles subject to historic covenants that may not be as well-drafted - as demonstrated by the fact that there is so much case law on the subject! Each case will turn on the wording of the covenant in question and the intention behind imposing it in the first place, but this decision gives some guidance on the approach that can be taken where the original benefiting party has died

Landlord & Tenant - relief from forfeiture: Magnic Ltd v Ul Hussan & AnrKey points:

A properly drafted commercial lease will contain a right for the landlord to forfeit the lease in certain circumstances, including if the tenant is in breach of covenant

The court has the discretion to grant the tenant relief from forfeiture and revive the lease if, in general terms, the tenant remedies the breach and if the court is satisfied the tenant will comply with its obligations in the future

The court will try to balance the advantage to the landlord in getting rid of the tenant against the disadvantage to the tenant of having the lease terminated

Practical implications:

The decision is a reminder that the court has a wide discretion when it comes to awarding relief to tenants. The court will take all the circumstances into account, including the tenant's behaviour and intent, but will also carry out a balancing exercise between the commercial interests of the landlord and the tenant

Landlord & Tenant - service charge recovery for improvement works: Waaler v Hounslow London Borough Council Key points:

There are statutory controls on what and how much landlords of residential portfolios can recover by way of service charge

A recent case serves as a warning that, when it comes to making improvements (as opposed to repairs) landlords need to consider alternative, cheaper options and must take account of the financial impact on tenants

Practical implications:

The statutory framework for the recovery of service charges for works does not make a distinction between repair and improvement, and the reality on the ground is that any distinction would be blurred, but the Upper Chamber took the view that they should be treated differently, as landlords are generally obliged under the terms of the lease to carry out repairs whereas they have a discretion as to whether they carry out improvements. In that respect, the decision in this case introduces uncertainty, which is never good. H has been given permission to appeal to the Court of Appeal, so hopefully there will be clarification from a higher court, but in the meantime, landlords may find it harder to recover service charges and will be under an increased burden to show that, in the case of improvements, they have considered other alternatives and have taken account of an individual tenant's ability to pay

Planning - judicial review: R (Blue Green London Plan) v Secretary of State for the Environment, Food and Rural Affairs Key points:

The Planning Act 2008 introduced a system of unified development consents for nationally significant infrastructure projects

Decisions on applications for development consent can be challenged by way of judicial review within a specified time limit

The courts do not have jurisdiction to extend the time limit

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.