PropertyLaw.guru Blog

EG 10-10-20

p.45 Judicial review. Richard Harwood QC argues why JR is important in planning, s.288 challenge, only happening with 1 in 2000 applications. Also discusses the recent  PDR and other proposed  planning changes.


P.48 Is ‘co-retailing’ the answer - where retailers share a shop space. Whilst not new, this can be a ‘concession agreement which is a hybrid licence and commercial arrangement, which is not a tenancy as it can be changed at the host-grantors discretion, subject to reasonableness. A useful outline of the main points that need to be agreed in such agreements, such as services, signage, appearance, fee, hours, stock, staffning IP, H&S, etc. Or it could be an underletting of part - issues to consider there too.


P.50 Amending existing planning consents - What are the two main routes to amending a planning permission - an application for s.73 grant of a new PP, minus the pesky condition(s) in question (which has its own issues to consider) or a s.96A non-material amendment. S.73 can’t be used to extend a PP, but s96A can in some cases, perhaps adding a phasing condition 


p.51 Rethinking regeneration within the procurement rules. How can schemes be changed without falling foul of the need to re-tender them? This may be where the original scheme proves unviable and it is agreed to remove elements such as affordable housing to allow it to proceed, Competing developer may claim it should be re-tendered under the public procurement rules


P.52 The Business Interruption FCA case and its impact on the arguments that rent cesser provisions in leases may be similarly triggered by the pandemic. Unlike BI policies rent cesser clauses generally require actual physical damage. The Landlord’s BI policies usually cover loss of rent following pandemic even though there is no damage to premises. However if the lease rent-cesser isn’t triggered then there will be no loss of rent to claim under the BI policy! Suggests that lease drafters need to change their approach to rent-cessers so the rent does stop where the L can claim on  BI policies !!


P.53 When can restraints  of trade be overridden? Peninsula Securities v Dunnes Stores [2020] UKSC 36 Dunnes (a prestigious store and highly sought after anchor tenant) had taken a 999 year lease for a £50k premium, built the store etc, and the developer in return agreed there would be no other unit over 3,000sqft selling food or textiles. The shopping centre started to struggle and the L argued this was anti-competitive and infringed the Competition Act 1988 and was in breach of the ancient doctrine of restraint of trade (!). The SC decided the restraint doctrine was not engaged, for the reasons explained in the article.


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