These notes are my distinction level revision notes for the Advanced Commercial Property elective. They contain all the key information (including exam structures) from seminars and lectures on the topic. I attained a high distinction in this exam.
permission of adjoining landowners is required if jib of
crane will overswing onto their land
1) ISSUES AFFECTING PROP
o licence negotiated before works commenced
Mine and Minerals o tenants consent if tenanted building
CL Presumption landowner owners everything below
surface to centre of earth o public highway: LA and sub-soil owners consent
Rebutted by showing title excludes mines and minerals
o Can be evidenced by statement on Prop Reg Rights to Light
o In some instances mines and minerals can be
specifically registered in a sep title Creation
Where reservation, SIM should be done easement entitling landowner to receive enough natural
Even if prop reg does not state they are excepted, light over a neighbours land to enable ordinary use
having absolute title is no guarantee it incs them CL does not recognise right to unlimited free flow
o Reservation in favour of 3rd party needs to be
reported in case it affects proposed use of land CL does recognise right to light from defined windows
Can seek to purchase rights from owner but and apertures
expensive and time consuming, insurance but not Acquisition by deed
after approaching owner
o Property reg
Access Issues Acquisition by prescription (lost modern grant)
Construction Traffic o If light has been enjoyed for at least 20 years,
Necessary to ensure sufficient rights assumed at some point an express grant
Access may need to be in a different temporary
location to eventual access of the site o 20 years can be any period
New Roads- will these be adopted? o Presumption rebutted by showing grant could not
Public right to reasonable use of any public highway have been made
Statute (s38 HA) or by ‘dedication Acquisition by prescription (PA 1832)
o S31 HA states that use for 20yrs w/out interruption
establish route was dedicate unless sufficient o 20 years continuous use to a specific aperture
evidence to show no intention to dedicate It o Where right established, then interrupted by a new
o Presumption can be rebutted by landowner erecting building, the dominant owner is entitled to
notice stating no intention to dedicate; also uninterrupted flow of sufficient light for
symbolically bar ROW one day a year comfortable use and enjoyment- Colls v Home &
LA responsible for maintenance following adoption Colonial Stores
Stopping up Existing Highways
S116 HA 1980 (app being made to Mags Court) Right to Lights Act 1959
Part X TCPA 1990 (app is made to SOS if stopping- o Removed need for an actual blockage and allowed
up order is needed) developers to register a Light Obstruction notice
Both very time consuming and costly, notices need to (virtual obstruction)
be displayed which gives rise to potential rejections
Diverting public ROW Notices served in prescribed form on the
Possible that roadways might be subject to public dominant landowners affected by virtual
ROW but not be adopted obstruction
o Would need t follow procedures to alter a public App made to UT(LC) for definitive registration
ROA (public path diversion order under s119 HA) of a LON
o time consuming and costly Commences on the date of registration
o developer must pay all costs and carry out works
required to divert Obstruction (virtual or physical) must remain in
o notices must be displayed place for a full year in order to stop right arising
by prescription
o orders can be challenged
Regan v Paul Properties- solicitors have been warning
Existing and New Services developer clients that they were likely to face and
injunction against infringement to rights to light
access is needed for pipes, water, electricity, telephones Coventry v Lawrence- injunction would be appropriate
and drains where: more discretion
o right to lay service pipes is not implied by grant of
ROW; Must be dealt with separately o If injury caused to PWB of right to light cannot be
may be acquired through prescription or by formal fairly compensated by money
deed; must fall w/ in current easement
o If the developer has acted in a high-handed manner
Airspace Issues (I.e. trying to evade jurisdiction of the court)
Ottercroft v Scandia Care- court will look at the
it is possible that you will need consent to interfere w/ conduct of the developers when deciding if to grant
airspace belonging to another injunction or damage
owner retains control of airspace to a height ‘necessary
for ordinary use and enjoyment of the land’- Bernstein Solutions for Developer
v Skyviews Deed of release
d
, Using LON procedure
a redesign scheme; s203 HA overrides easements
right to light indemnity insurances Types of PP
acquisition of the property that has the right
In order to stop the 20 year prescriptive period 1. Outline
accruing, the obstruction must commence within 19
years and 1 day of the start of the prescriptive period so a) Commits LPA to allow development in principle
that the flow of light can be interrupted for a full year. subject to subsequent PP for LPA of detailed
- Landowner must object else extinguished (LON) matters- No further PP is required
2. Full (or detailed)
3rd Party Occupiers
3. Limited
Tenancies 1. By time
necessary to establish whether or not they have security Like full pp but is granted for a limited time
of tenure under LTA 1954 only
need vacant possession Normally for a specified number of years
Adverse Possession 2. Personal pp
Personal to specific person
AP must prove: Resumption of Previous Lawful Use/ EIA
1) that they have been in factual possession of the land
(exclusive possession w/ intention to possess) Where limited pp has been granted in the past but it
2) possession must be adverse (inconsistent w/ the expires the lawful use reverts back
rights of owner)
AP must be for prescribed period EIA may need to be submitted w/ p app where
o Unregistered land development would have a sig environmental impact
LA 1980 so 12 years uninterrupted possession The Decision
o Registered land
Much more difficult to demonstrate LPA May:
10 years AP i) grant pp unconditionally
Squatters ii) refuse permission
iii) grant permission subject to the conditions it thinks
Self-help; negotiating w/ them to ask to leave fit
Interim possession order: court proceedings
o LO has 28 days to apply for IPO once discovered S70(2) TCPA requires LPA to have regard to the
o 24 hours to vacate or sent to prison development plan doc and other material considerations
o Rarely used in practice in determining planning apps
CPR Part 55 Development Plan
o App for possession (w/ detailed witness statement)
made to CC S38(6) Planning and Compulsory Purchase Act says
LA’s have to consider development plan when making
PLANNING ISSUES any pp decisions
When is PP needed? Decision Period
S57(1) TCPA PP needed for: 8 week period
o Operations and development 13 weeks for more major developments
o Material change of use If EIA required, increases to a further 16 weeks
S55(1A) Building operations If have not heard by this time then it is a deemed refusal
of PP
o Demolition
What constitutes grant
o Rebuilding
R v West Oxfordshire DC ex Parte C H Pearce Homes-
o Structural operations grant of pp is made when permission is communicated
o Other operations normally undertaken by a builder to app in writing
S52(2) certain building operations not development Letter is not an official grant
o Internal alterations except cellar conversion Effect of PP
Obtaining PP Timescale for Implementation
Apps For full (or detailed) pp granted on or after 24 AUG 05,
development has to commence w/in 3 years of the grant
Express
For outline:
o Can be made by anyone, not just freehold owner - apps for removal or reserved matters must be made
of land w/in 3 years of the grant otherwise lapses
o Must notify any other owners if not sole owner - the development permitted must be commenced w/in
Pre-app discussion 2 years from the final approval for reserved matters
o Developer should liase w/ LPA prior to LPA may shorten and lengthen in both cases
, submission to save time and iron out issues
Extension of Time for Implementation What considered?
Not possible to extend o Whether LPA acted ‘ultra vires’
Duration of PP once granted o Irrationally
PP takes effect for the benefit of the land and all o Was there some form of procedural irregularity?
persons for the time being interested in it (s75(1)
TCPA) What Next?
- Benefit of permission runs w/ land concerned; so once o C has 7 days to serve issue claim on other parties
implemented it will last indefinitely OR
- conditions also run w/ the land Process Planning Inspectorate
Development completion notice When?
o Under s94, completion notices can be served on owner o w/in 6 months of LPA decision
or occupier if works have not been commenced Who?
o Must specify a reasonable time period w/in which the o App who made a
works must be commenced, otherwise PP will lapse
What to state?
Conditions Affecting PP o Reasons for the appeal and pref for written reps
S70 & S72(1)(a) TCPA- LA’s have authority to o A hearing or public inquiry
impose such conditions as it thinks fit o Copy of appeal must be sent to LPA
Written decision must clearly state reasons for What next?
conditions
o Challenge decision in HC (S288 TCPA)
Newbury DC v SOS Environment- the condition must:
o ‘Aggrieved person’- applicant or 3rd party w/ locus
- be for a planning purpose and not some ulterior standi
motive
o Challenge issued and served w/in 6 weeks of
- fairly and reasonably relate to the development appeal decision
- not be so unreasonable that no reasonable planning Planning Obs and S106 Agreements
authority could have imposed it
What?
Para 206 NPPF 6 tests which must all be met by any
planning condition LPA can require a person interested in development of
land or buildings to enter into a planning ob to restrict
1. Necessary and regulate any development so that the proposal is
2. Relevant to planning acceptable
3. Relevant to the development to be permitted Obs contained in:
4. Enforceable - S106 agreement between LPA and landowner
5. Precise A unilateral undertaking made by the landowner or
developer
6. Reasonable in all other respects
S106 TCPA
Appeals Specify a restriction on the development or use of land
Applicant Require specified operations or activities to be carried
out on the land
S78 TCPA applicant may appeal to SOS w/in 6 mnths Require land to be used in a specified way
of refusal (or deemed refusal) on grounds LPA has:
Require money to be paid to LPA
o Refused pp
S106(3) allow the creation of positive obligations that
o Granted subject to conditions which applicant do run w the land
objects
o Both the developer and successor in title will be
o Refused app or granted permission subject to s73 bound
or s73A TCPA conditions
o A superior title holder will not immediately be
3rd Parties bound; only if party to the agreement
Can challenge a decision but only by JR o Any 3rd parties having rights in the land will only
Process JR be bound if they consent to it
When? NPPF Test for Planning Ob
o w/ in 6 weeks of grant by LPA 1. Necessary to make the proposed development
Who? acceptable in planning terms
o C must have ‘sufficient standing’ 2. Directly related to the proposed development
3. Fairly and reasonably related in scale and kind to
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