Commercial Property

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

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

The Supreme Court has ruled that, for the purposes of succession, a Council flat tenancy held by a tolerated trespasser can be revived.

The case involved a trespasser of a flat who was tolerated, not a tenant!

He had lost a secure tenancy when the Court granted a Possession Order against him.  The Landlord Council, the London Borough of Southwark, argued there was no tenancy to which anyone could succeed.

However, the tolerated trespasser, unfortunately, was terminally ill.  His brother moved into the Council flat to look after him.

The brother, Barry Austin, resisted attempts by the Council to evict him.  He lost in the lower Courts and the Court of Appeal.  However, the Court of Appeal ruled that where a former tenant died as a tolerated trespasser, the person seeking to succeed to the tenancy could apply to the County Court to postpone the date for possession.

If the application was successful, the tenancy could then be revived!

Of course, in practical terms, this is not the end of the matter but an unfortunate situation for Council Landlords and, nevertheless, remains a complex area of the law for tenants!

Communities Secretary Eric Pickles is not everyone’s flavour of the month in matters planning.  The removal of regional strategies and centrally imposed building targets has, for many involved in development and town and country planning, left a void which will result in fewer houses being built thereby exacerbating the current shortage.  However, not everything that Mr Pickles and his Department does is bad.  The Department of Communities and Local Government have produced technical guidance on permitted development for householders.  The intention behind the General Permitted Development Order is to enable small scale development to be undertaken without the necessity of obtaining planning permission thereby avoiding further clogging up the already overloaded planning system.

The document replaces earlier guidance.  The stated objective is to set out the rules concerning what extensions, improvements and alterations a householder may make to a house and the area around it without the need for a planning application.  The new guide is designed to be used by anyone who wants to understand more about the detailed rules on permitted development and the terms used in those rules.

Having read the guide and considered its diagrams, I have to agree that this document achieves its objectives.  In colloquial parlance, it does what it says on the tin.  As someone who has an expanding town and country planning practice, I confess that not only will householders find this document useful but at least one professional, namely myself.

Unfortunately at the time of writing this blog, the 26th August, the document does not appear on the website of the Department of Communities and Local Government nor on the website for national information.  If anyone wishes any information concerning this guidance, please contact me.

The Government has made much of its proposals stating that these give the Local Authorities “the freedom to prevent over development of neighbourhoods”.

Will this make a difference in Swindon and will it prevent over development?  According to the Government’s latest available figures which relate to 2005/2008, only 7% of all new building in Swindon was on previously residential land.  That is hardly a significant figure.  Whilst the proposals may have an influence in some areas, apparently not in Swindon.

In any event is there a problem with large houses with large gardens being redeveloped to meet modern needs?  Many people no longer want nor can afford large houses with large areas to maintain.  What this change in policy, coupled with the removal of the obligation to enforce national minimum density levels, is intended to achieve is  to ease the problem of the shortage of housing across the country. I doubt that it will have this affect.  I think it will exasperate the existing problem.

Malcolm Poynter, a commercial property lawyer with Charles Lucas & Marshall explains a new Government incentive scheme aimed at making companies more energy efficient.

CRC Energy Efficiency Scheme

The Carbon Reduction Commitment Energy Efficiency Scheme (generally referred to as CRC) came into effect on the 1st April. The Scheme is based on buying CO2 Allowances and is intended to act as an incentive to larger energy consumers to become more energy efficient.

To work out whether the CRC Scheme affects you directly, the first thing to do is to work out the extent of your organisation eg this may include group companies and other legal structures such as joint ventures.

If within the organisation there is one half hourly electricity meter then the Scheme could affect that organisation. A half hourly meter is a form of metering which feeds back data to the electricity supplier on a half hourly basis.

If the organisation consumes in excess of 6,000 mega watt hours of electricity (with some exceptions) then it will need to register and take part in the Scheme. Registration is required by 30th September 2010.

Again, if you have one half hourly electricity meter you will probably need to register and provide information even though you will not take part in the Scheme itself.

The important point to appreciate is that the Scheme is not based on location or building – it is by organisation. Thus a chain of owner occupied shops could result in the overall consumption exceeding the qualification limit, bringing the business within the Scheme.

Currently, qualification is based on the year ending, 31st December 2008 and therefore the organisational structure at that date is the relevant one and the consumption of electricity during that year is the relevant qualification criteria.

It may be your organisation does not receive electricity directly, eg if you are a tenant it is quite common for the landlords to supply the electricity and to recover the cost from the tenants. In those circumstances, even though you may be a small user of electricity, it could be you are affected by the Scheme because your landlord is. The landlord may, for example, seek to pass on costs of the Scheme through the service charge arrangements.

There are special rules for public sector organisations and for franchises.

If the organisation qualifies for the Scheme then it will need to acquire Allowances for electricity to be consumed. At the end of the compliance year the organisation will need to surrender the appropriate number of Allowances to cover the emissions for that period. If you have acquired insufficient Allowances at the outset then you will need to acquire further Allowances on the market, as Allowances may be traded.

A league table will be established based on various criteria as to efficient use of energy within the organisation concerned. The Scheme is meant to be revenue neutral from the Government’s point of view, ie it is not meant as a tax. Monies raised through the sale of Allowances will be repaid to participants in accordance with their ranking in the league table (recycling payments) thus incentivising improved energy efficiency.

Further details are available at the Government website http://www.decc.gov.uk/en/content/cms/what_we_do/lc_uk/crc/crc.aspx or by contacting Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk