EG 18-01-20

EG 18-01-20

p.49 Excellent article on the effect of putting in a document that a party will act ‘in good faith’ and the unwillingness of the courts to imply a duty of good faith (unlike continental legal systems). So long as parties do not break any contract terms they are fee to act in their own self interest in performing it, in the absence of an express duty of good faith.

p.51Asbestos is responsible for 5,000 deaths a year, more than those on the road. Yet IMHO property lawyers do not focus on it like they should in pre-contract investigations.Must read outline of key dates and the roles of both the experts and employers.

p.52 Party Walls - update on key 7th edition of the RICS guidance note  to party wall surveyors, published in August 2019. The note deals with professional conduct, the scope of the retainer and powers to decide aspects, methods of service, fees, jurisdiction and fees

p.53. many businesses are trying to reduce their business rates. Wigan FC were unsuccessful in their attempt to persuade the Valuation Tribunal that being related from the premiership to the League One was a ‘material change of circumstances’ justifying a reduction in their stadium’s RV. The occupation hadn’t changed nor had the physical features

p.54 In Holding & Management (Solitaire) Ltd v Miller UKUT 2020 the County Court sent the case to the FTT. However the UTT held it had gone beyond the limits of its jurisdiction in dealing with the whole argument (about service charges and reserve funds). It was only able to answer the question of whether the reasonableness in relation to the inclusion of the windows of the flat in the service charge so it was referred back to the FTT to decide that issue

p.55 Building control approved inspectors used in place of the local authorities building control department are facing a crisis post Grenfell as they are finding it difficult to get professional indemnity insurance. As a result projects across the country are finding that the approved inspector has to stop providing services. Once an approved inspector cancels the notice it should transfer to the local authority, yet few notices are cancelled and many projects are proceeding unregulated. But if transferred to the local authority they will not be liable for economic loss or break of building control when signing off on a project. Or they accept an approved inspector with very low caps on liability and exclusions meaning they will have no effective recourse for mistakes

p.56 Small builders. The system is against them, and is heavily weighted in favour of a small number of big hosuebuilders. Problems like the cost and delays in getting planning approval, lack of available and viable land, the complexity of developing urban sites (rights to light, access etc). Suggests a reform of the planning system etc.

p.57 Town & Village greens - two Supreme Court cases combined appeals Lancashire v. SS and NHS v Surrey on TVGs. The Newhaven case SC held that s.15 Commons Act which enables land to be registered as a TVG did not apply to a working harbour held by a port authority for specific statutory purposes that were incompatible with use as a green. The conjoined appeal head the the concept of statutory incompatibility must be applied ‘with care and only when the need to do so truly arises’. In a far-reaching judgement SC held that this was a ‘desk-top’ exercise, simply one of statutory incompatibility decided by statutory construction rather than be reference to how the land is being used at a particular moment or might be used! The education authority in Lancashire had a duty to safeguard children and this was incompatible with TVG use, and in NHS v Surrey it would not be possible to use the land for health authority purposes and a TVG. So neither registrations could stand. This may result in some registrations being undone! This case is not going to be the end of the subject yet..
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