Summary Distinction Level Advanced Commercial Property Notes- BPP University Legal Practice (Solicitors) Course

 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