EG 7-3-20

New slimmer EG with more compact layout!

News stories
p.31 Big one is the possible insolvency of Intu (which runs many big shopping centres like Merry Hill in Birmingham and the Trafford Centre as it is sitting on £4.7 billion of debt! Its not just retailers that are under pressure, but their landlords are too.

p.39 Average planning decision wait is  257 days - something to take into account when deciding a time period for options and conditional contracts. The worse was a 665 day wait for approval of a 14 house scheme in Gloucestershire. But almost 20,000 new homes were approved across 242 residential schemes
p.47 A list of the worlds top 100 real estate companies which between them own $6.1 trillion of assets

p.58 the rise of flexible office space (like wework) as many more landlords seek to grab a bit of action in this sector. Last year saw a 20% rise. Landlords are going toe-to-toe with Spaces and wework, providing flexible lease/licence terms, providing ‘managed’ solutions. Does this mean less bread and butter commercial lease work for solicitors or are we going to be innovative in our drafting to allow these changes?

p.65 Interview with five leading property mediators  on how they see the growth of mediation as an alternative to expensive and lengthy litigation now the court system is on its knees with delays and short-staffing. There seems little prospect of compulsory mediation rather than litigation  though failing to mediate may have costs consequences if the matter goes to trial

p.68 Must read article explaining a number of practical scenarios where an EPC at or near the F or G rating may have disastrous commercial consequences for landlords and tenants when it comes to dealing with dilapidations, break clauses, and the impact of long leases not needing one. Few articles actually give practical examples, so this one is really helpful. (Don’t forget the ‘exemption’ scam that’s going on at the moment, as mentioned in earlier EG 25-5-19). For example a 1960’s office rated at C. In 2025, as part of an assessment of dilaps, T shows that it is likely to be rated as sub-standard, meaning L risks whole of property in breach and penalties of up to £150k for each of the lettings allowed to continue. Or a lease of a property that was C in 2011 but its shown the assessment was bad and its an F really.T breaks the lease with L stuck with a sub-standard and unlettable property. Or a freehold let on a long 125 year lease to HT. HT lets it on short FRI leases F wants to redevelop but HT won’t play ball. F proves its a G rating  which doesn’t affect the freeholder but HT is now in breach and so wants to surrender or do a deal!

p.70 Floods and resilience. Timely article about the Code of Practice for Property Flood Resilience (PFR) measures. It points out the duties of solicitors under the Law Society’s Practice Note on Flood Risk reissued on 31 January 2020, which puts a heavy burden on us to advise. Some properties such as commercial will not be covered by Flood Re or be able to get insurance in the market and instead may decide to carry out PFR rather than abort a purchase. Also some occupiers are finding post storm Dennis that their flood cover is not available on renewal and may have to rely of PFR measures. The hope is that insurers will think that compliance with the code will allow them to provide cover.

p.71. More about the Tate gallery overlooking case. An outline of the law of nuisance generally and how it was arguable that possibly overlooking was a nuisance. The CA considered this was not possible for policy reasons and it was for parliament to legislate on the issue if the planning system did not control it sufficiently 

p.72 Looks at Boris’s special advisers report on rethinking the law of planning, which had two main recommendations. One was to remove from councils the power to control individual land plots (!) and a simple zone system introduced. Secondly binning local plans and replacing them with a limited set of rules detailing what type of development is not acceptable in their area.  Points out that this simplistic approach underestimates the problem, sets out its flaws, Look out for this months Planning White Paper to see what is proposed!

p.73 The tale of the neighbour dispute that cost the protagonists dearly. The long running case of Burgess v Lejonvarn [2020] EWCA Civ 114 involved a former neighbour who offered to help out (for free) in the project management and design of the Burgesses’ garden  in 2013 and was then sued! They lost on all counts and the designer was aware indemnity costs. A sobering warning for anyone considering seeing a friend or neighbour who offered to help and wasn’t formally engaged or paid!

p.74 Case summary on the decision widely reported in the nationall press - R (Plan B Earth) V SS Transport decision that Heathrow’s proposed third runway was bad as it had not taken into account climate change
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