Commercial Property

PRESS RELEASE – released 20^th January 2012

Calling All Golfers

Rotary International - Newbury

On the 10^th May 2012, The Rotary Club of Newbury is having a FUN CHARITY GOLF DAY at the picturesque,  Donnington Valley Golf Course in aid of Stroke Care for Newbury and West Berks and other selected local Rotary Charities.

There will be coffee and bacon rolls during registration starting at 07.45 with the golf starting at 09.00 based on a full handicap Stapleford competition team event.

Following the golf, a two course meal will be provided during which the prize presentation will be made and a raffle will take place.

Donnington Valley Golf Club is at Snelsmore House, Snelsmore Common, Newbury RG14 3BG

There is an entry fee of £200 for each team of four.  Alternately, Corporate Entry at £240 per team of four is available with Hole Sponsorship with your own on-course advertising.

For application forms please contact either Kevin Mosley on 0118 9811851 or Trevor Gibbons on 01635 254123 or download from our web site at http://www.newburyrotary.org

EARLY APPLICATION FOR PLACES IS RECOMMENDED.

Contact address:
Chris Bartlam,
49 Laylands Green
Kintbury
Hungerford
Berks
RG17 9UB
Tel: 01488 658540
Email: ctbartlam@googlemail.com

Rotary Club of Newbury web address: http://www.newburyrotary.org/

Rotary’s main objective is service in the community, in the workplace, and around the globe. There are 1.2 million Rotarians who make up more than 34,000 Rotary clubs in nearly every country in the world who all share a dedication to the ideal of  “Service above Self”. Rotary Club of Newbury is one of those 34,000 clubs.

Provided that there is compliance with a myriad of restrictions and limitations, there is no longer need to obtain a planning permission for the installation of, alteration of or replacement of microgeneration  equipment  (including wind turbines) on or with the curtilage of a dwelling house and block of flats.  The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2011 tells us so. 

That is the good news but there are traps for the unaware.  The legislation is written so that you are permitted to carry out the development but only if you comply with the detailed requirements.  For example, the blades of a wind turbine must be made of non reflective materials and stand alone solar must be no more than four meters in height. 

The details are there for good reason and are largely unobjectionable unless you fall foul of them.  The point I am making is that we can all become greener but only if we  carefully chose  the path  to the lush green meadow on the horizon.  

If you would like more information please contact me on 01793 511055 or hugh.ellins@clmlaw.co.uk

Once upon a time the buying and selling of dental practices was a relatively easy affair.  As a client recently  said to me: “when I decided to buy this practice some 25 years ago, I spoke to the seller, popped round to my bank manager and about 7 days later was the owner of the practice”.

To Sell or Buy a Dental Practice

I accept that there may be an element of rose coloured spectacles in the tale but without doubt, such transactions have become more complicated, elongated and costly.  Where the practice is an NHS supplier, one has to find ways of transferring that work from the seller to the buyer.  To that must be added the relatively new complications occasioned by the CQC registration.  In the current market place there is the difficulty of the purchaser procuring funding in a reasonable timescale.

Is there anything either the seller or the buyer can do to smooth and shorten the process?  The following are some thoughts:

1.    The seller can at an early stage get the paperwork in order.  By which I mean for example ensuring     that there are copies of all contracts, whether with suppliers or contracts of employment.

2.    Early discussion with the local NHS trust can establish a rapport with an individual in that organisation     which might be useful when trying to get confirmation of receipt of 292 and 299 Notices.

3.    A similar approach with the CQC can be productive although that organisations rules are somewhat fixed.

4.    The purchaser should at an early stage get his funding agreed in principle and supply as much of the     information required by the funder as possible.

5.    Both parties should consider sooner rather than later what, if any, arrangements there are to be for     the seller working at the practice after completion of the sale (this excludes any arrangements concerning NHS work).

You will have realised that the thread running through this piece is that early planning and preparation makes a substantial and beneficial difference to the way in which it progresses.

I do not want to push the analogy to too far but just like a military campaign, the more forward planning there is the better the result.

Hugh Ellins

You can contact Hugh Ellins on 01793 511055 or hugh.ellins@clmlaw.co.uk

The Government has published an issues paper, which can be found on the Department of Communities and Local Government’s web site, seeking views on the question as to whether the process of change of use of land or buildings should be further deregulated. This is based on the assumption that the existing system is too restrictive and militates against economic growth.  Underlying the paper seems to be an assumption that there should be further deregulation whilst accepting that this may create local issues and concerns.

Being someone who enjoys a good debate I would like to propound the opposite idea that if anything we are likely to need greater control. Why should that be?

Planning legislation came into being because in the 1940’s there was largely unrestricted development and there was recognition that this was not good nationally and was creating social problems.  The increasing population in England and Wales (now 62,000,000) means that we are all having to live more closely together.  Dwelling units for most people are smaller and more tightly packed together.  That means that there is greater concern about what your neighbour does with his property particularly if the new use may lead to an increase of noise. Noise pollution must be one of the growing problems of this generation.

In respect of high streets an increased ability to change use could speed up the process whereby they cease to be a retail experience and moves to other uses some more acceptable than others.  Initially this is unlikely  to affect the retail parks but will first hit the local high streets which are already under threat.  The local high street may already be in its death throws but if the view is that it should be preserved for  as long as possible then a greater freedom to change uses of premises away from retail can only  have  an adverse effect.

The government is making much of its localism rights in the  Issues Paper on the basis that what may suit one area will not suit another.  I declare an interest in that I am yet to be convinced of the benefits of localism.  I see it is as potentially devisive in that those areas which are inhabited by the strong minded, affluent and with  time are likely to gain whilst other areas will suffer.

The effect could be that there will be a different form of lumbarisation in one area as against another.  In a county the size of England and Wales that seems to me a recipe for chaos.

For all of the above I am tending to the view that greater liberalisation in this area of change of use sounds wonderful but could have serious and unforeseen consequences .  If you would like to read and or comment on  the Issues Paper then click on this link.

How change of use is handled in the planning system – tell us what you think: Issues paper

You can contact Hugh Ellins on 01793 511055 or hugh.ellins@clmlaw.co.uk

Recently the High Court has considered whether in a planning appeal if a report was not brought to the attention of a claimant this was against the rules of natural justice and was therefore unfair, rendering the appeal potentially void. 

The report, on the question of noise, was lodged as part of the developer’s appeal which was heard by way of written representation. 

Robin Purchas QC, sitting as a Deputy High Court Judge, decided that on the rules of natural justice, the claimant should have been aware of the documentation that was lodged with the Local Planning Authority. 

The judgement is full on this and the other point which was raised and, in my view, is not surprising. 

The question that was not considered is what is the position if the documents are not properly filed by the Local Planning Authority or not put on its website for downloading? 

Can a person then claim that an appeal should not be allowed, or does he then have a right of action against the Local Planning Authority? 

Although this was not considered, it is an area of interest and concern.  I am sure that I am not alone in endeavouring to inspect documents either at the relevant office of a planning authority or its website to find that not all documents are available. 

What happens, for example, if an inspection is made and the documents are subsequently filed?  There are no answers to these points as they will have to be decided by the Courts.  However, what is certain is that, as the case law currently stands, if anyone is involved in a planning appeal he should ensure that the planning file of the Local Planning Authority is inspected probably more than once.

One of my litigation partners is always saying that before he undertakes any litigation he needs to get his ducks in a row. A recent case about a planning enforcement notice highlights the need for this approach.

A gentleman had served on him an enforcement notice concerning  some works he had undertaking. The notice required him to remove a brick outhouse and some hard standing. The man objected to the notice and commenced appeal proceedings.

He lined up two ducks being:
A  He did not need planning permission
B That he wanted an oral hearing

The planning inspector shot both down and left intact the enforcement notice.

• That was appealed to the QBD where he argued that
• The Inspector had erred in law and
• That he should have varied the existing planning permission to incorporate permission for  the works

This is where the ducks are clearly out of line. The man making the appeal claimed that he had commenced work earlier than he had previously stated and that in any event the decision to continue with the enforcement notice was excessive. Neither point he had not previously made.

The QBD shot down all the ducks including those that were late into the air. That resulted in the enforcement notice being upheld.  Part of the reasoning was that the Planning Inspector had no obligation to seek out what were the grounds of appeal but to decide on what was presented to him.

The arguments may have been successful if the case was better presented. In other words there should have been more time spent in getting the ducks in a row.

Do you think that when the company was created anyone thought of the similarity in the name to a certain John Le Carre character. At least this company and the DCLG are fighting out there differences in the full glare of the courts and not in the labyrinthine realm of the Circus.

Pickles is, as they say, dead but will not lie down. He has announced that the Government will introduce legislation to push on with the abolition of the Regional Strategies. He has also announced that taking that into consideration the planners and the Inspectorate should bear his comments in mind.  See his letter of the 10th November to Chief Planning Officers.

I was recently at an interesting discussion on the potential use of mediation on town and country planning matters. The initial reaction, of the majority of the town and country planners, both in the private sector and the public sector, was that the idea was interesting but that they could not see how that process would easily fit into the system.

That issue is not the main point of this blog which is Cala. What Pickles hopes is that the professionals will ignore Cala and forget regional Strategies. From what I gathered that is unlikely to happen. Several of those present had appeals going on where the submissions had been drafted excluding reference to the Strategies and where that there is now a frantic rewrite. Whilst I can understand what Pickles is driving at it is strange, to a lawyer, to suggest that people should forget what the law says because the law should change.  What happens if the law does not change or the government changes its mind on its planning reforms? That would be good as  for the majority of what they propose but I doubt will happen.  Apart from that, I think a lot of people will want to revert to the regional Strategies because, for all their faults, a lot of the planning fraternity think they are better than what is proposed.

Hemant Amin, a commercial property specialist at solicitors, Charles Lucas & Marshall, says a large majority of commercial property owners and landlords are risking fines for breaching energy performance regulations.

Energy Performance Certificate

An Energy Performance Certificate (EPC) is a certificate to grade the energy performance of a property on a scale from (A) very efficient to (G) least efficient.

Since 1 October 2008 an EPC has been required for the sale or lease of commercial property. This includes the transfer of a lease and grant of a sublease.  There are few exemptions so most transactions fall within the regulations.

For transactions within the regulations the seller or landlord must produce an EPC to a buyer or tenant by whichever of the following events occurs first:

•    the seller or landlord provides written information about the property to a person who has requested information
•    a prospective buyer or tenant views the property;
•    a contract is entered into to sell or rent out the property

However, in a recent survey carried out by the National Home Energy Rating Scheme (NHER) it was found that 81% of commercial properties were in breach of EPC regulations.

There are financial implications for failure to provide a valid EPC.  Trading Standards are responsible for enforcement and can, within the period of six months from expiry of the period in which it should have been initially produced, ask the seller or landlord to produce a copy of the EPC.

Failure by the seller or landlord to produce the copy EPC within seven days shall result in a fixed fine of £200 unless the seller or landlord has a reasonable excuse eg, was on holiday or suffering from illness during the seven day period.

If the seller or landlord has failed to commission an EPC or if a copy is not produced to Trading Standards within the seven day period without reasonable excuse, then Trading Standards can issue a penalty notice provided that this is done within the same six month period.

In such circumstances, the penalty is 12.5% of the rateable value of the property subject to a minimum amount of £500 and maximum amount of £5,000.  If the property has no rateable value then the fine is fixed at £750.  To what extent Trading Standards are policing EPCs is currently uncertain.

A penalty notice must be withdrawn if the seller or landlord can demonstrate that he took all reasonable steps and exercised all due diligence to avoid breaking his duty to make an EPC available.

Sellers and landlords should also consider that in addition to the financial penalty for failure to prepare an EPC, there may also be potential damage to market value and rental yield of the property.

For more information contact Hemant Amin on 01635 521212 or hemant.amin@clmlaw.co.uk

Solar Farming

Solar farming is now becoming established as a means of revenue for farmers. One of my land contacts already has several deals under way and I have been looking at the terms on offer from those who intend to solar farm.

The documents usually consist of an option to take a lease if planning permission is granted, an agreed form of lease together with a grazing agreement. The operator accepts the obligation to obtain the planning permission and then agrees to enter into a form of lease. The payments for the option vary as do the terms of the lease but they are reasonable and will undoubtedly bring in good revenue to the farmer. This seems a good method of diversification without much effort from the farmer.  I wonder how long before one of the farming community in the Archers are involved in this sort of arrangement?
As a method of acquiring an alternative source of energy I would have thought this has benefits to all concerned not least those paying for electricity. Solar farms seem to have benefits over wind farms in that they are less obtrusive on the vista and certainly less intrusive as to noise.  Added to that I am yet to see any suggestion that being in close proximity to them is potentially dangerous, as apparently are power cables. No doubt that hare will be raised at some point

Are there any down sides to this enterprise are there any traps for the unwary? As ever it is the detail that can catch out the farmer.  Here are a couple of points that need careful consideration.

a) Can the use of the solar farm be intensified without the farmer getting an increase in rent?
b) Can the farmer get the land back at the end of the lease and if so in what condition
c) Just how obligated is the operator to get the necessary planning permission

Assuming that the farmer can get the documentation right then he seems to be, as they say, on to a good thing.

I went on holiday in September with the promise from various clients that their land deals were progressing and came back two weeks later bronzed by the Marrakesh sun, refreshed and having honed my negotiating skills by haggling over taxi prices and the like to find what?
Not a lot. The clients are all nervous and certainly sitting on their hands. The banks are out trying to lend, as long as there is absolutely no risk and they have security that is not only belt and braces but also the trousers as well.

So what does a commercial property lawyer do? He turns to his second string of planning advice. There is still work in this area particularly relating to certificates of lawful use and enforcement issues. Certificates of lawful use seem to be an area which is now much considered. Why one asks oneself?  I suspect it is because the planning process is in such a muddle, with thanks to Mr Pickles, that people are turning to the idea of getting some basic position secure so that they can then try and move to their real objective knowing that the local planning authority cannot take away the base position. A certificate of lawful use is relatively easy to obtain, provided that the applicant completes all the necessary boxes and forms. The case is one of fact and not subject to the vagaries of the views of planning officers and the planning committee. Has the use been continuous for 4 or 10 years?  If so, the certificate must be granted.

I know there have been some high profile cases involving secret development which have fallen foul of the procedure but these are rare and, from what I read, deserved to fail .