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Commercial Property Titles ~ September 2021
- Britain’s First 24/7 Zero Emissions Street Survives High Court Challenge
- High Court Detects Apparent Bias in Residential Planning Decision
- Read This to Understand Why Oral Contracts are Such a Very Bad Idea
- Royal Park Boathouse Can’t Be Removed by Departing Contractor
- What Amounts to ‘Actual Occupation’ of Land? Court of Appeal Ruling
Britain’s First 24/7 Zero Emissions Street Survives High Court Challenge
As the UK strives towards a brave new world of net zero emissions, lifestyles have to change and there will inevitably be those who suffer inconvenience and financial loss. In a case on point, Britain’s first 24/7 zero emissions street survived a local resident’s High Court challenge.
Beech Street, effectively a 350-metre-long tunnel, passes beneath the Barbican, an iconic, brutalist estate in the City of London that includes thousands of high-rise homes, a cultural centre and a school. Until March 2020, it was used by about 9,500 vehicles a day on weekdays and suffered from poor air quality during rush hours.
Shortly before the onset of the COVID-19 pandemic, the City of London Corporation introduced a ground-breaking experimental traffic order (ETO), which had the effect of closing Beech Street to all through traffic save zero emissions vehicles. The ETO was adopted despite objections that it would merely divert traffic into neighbouring streets, some of them residential.
A Barbican resident argued that greatly reduced traffic flows through the City arising from the pandemic had undermined the ETO’s status as a genuine experiment. He asserted that it was unlawful from the day it came into effect but focused his judicial review challenge on a decision of the City’s Streets and Walkways Sub-Committee in February 2021 not to suspend or revoke the ETO.
On a personal level, the ETO meant that he had to access his underground car parking space via a difficult and circuitous route. It was impractical for him to drive an electric car due to a scarcity of charging points. Although the ETO permitted all vehicles to use Beech Street for access purposes, many drivers were confused by prominent ‘no entry’ signs and the fact that satnav devices no longer recognised the street as open.
The City, however, argued that the ETO was a bona fide experiment to measure the effect of such arrangements on air quality. The pandemic could not have been foreseen either when the sub-committee resolved to make the ETO or when it was adopted. Despite the pandemic, the experiment still had a rational basis and remained capable of answering the question it was set up to test.
Ruling on the case, the Court noted that, as a result of the pandemic and the reduction in traffic volumes, it had not been possible to undertake the comprehensive monitoring and analysis that was originally intended. In particular, it had not been possible to monitor the effects of displacing the pre-pandemic level of traffic away from Beech Street into surrounding streets.
Dismissing the challenge, however, the Court found that the decision not to revoke the ETO could not be characterised as irrational. Despite the pandemic, it had been possible to gather useful data on air quality and traffic volumes and modelling tools could be used to provide estimates based on extrapolation from the data. There was also the prospect of traffic returning to more normal levels as pandemic restrictions were eased.
By allowing the ETO to continue, the City had gained a much better understanding of its considerable adverse impacts by conducting public consultation and an equalities impact assessment. It had also been able to observe the impact on neighbouring streets. Overall, the ETO continued to be a genuine experiment to assess the benefits and disadvantages of restricting vehicle access to Beech Street. The results would help to inform future consideration of a permanent order.
Partner Note
R on the Application of Tomkins v City of London Corporation [2021] EWHC 2265 (Admin)
High Court Detects Apparent Bias in Residential Planning Decision
Justice should not only be done but should be seen to be done. That phrase may be somewhat hackneyed but, as a High Court planning case showed, it is a golden rule that serves to root out even the appearance of bias in official decision-making.
The case concerned a planning permission granted for construction of 23 houses and a three-storey block of flats in a seaside town. The site was owned by a limited liability partnership (LLP) between the local planning authority (LPA) and another council. The LLP focused on mobilising private sector finance for economic regeneration projects and could only act with the LPA’s authority.
The LLP had entered into a contract with the developer by which the developer agreed to use its best endeavours to obtain planning permission in respect of the site as soon as reasonably possible. In challenging the permission, a local objector argued that the decision-making process gave rise to an appearance of bias.
Ruling on the matter, the Court found that the LPA would gain from the regeneration of the site and that there was at least the potential for it to also benefit financially. The planning application having been made on behalf of the LPA, as a partner in the LLP, it should have been considered by its planning committee. In the event, the decision was taken by a planning officer using delegated powers.
The Court acknowledged that it is inevitable that local authorities sometimes have to determine planning applications relating to land in which they have an interest. The law had to be applied in a way that did not render decision-making impossible or unduly difficult. The existence of the contract between the LLP and the developer was not by itself sufficient to persuade a fair-minded observer that the decision was tainted by apparent bias.
However, the Court noted that the LPA’s initial position that the application would be considered by the planning committee was subsequently changed. Matters relating to noise generated by the development, its effect on air quality and highway safety and its potential impact on a nearby special protection area had also not been dealt with properly.
In quashing the permission, the Court concluded that a fair-minded observer would have thought there was a real possibility that the decision-maker was biased. Given its interest in the site, the LPA was under a particular duty to weigh the issues, engage with objections, and set and closely observe procedural requirements. That duty was not complied with.
We can advise you on any matters relating to planning law. Contact us for guidance.
Partner Note
R on the Application of G v Thanet District Council [2021] EWHC 2026 (Admin)
Read This to Understand Why Oral Contracts are Such a Very Bad Idea
Oral commercial agreements have a nasty habit of fostering dispute, yet a surprising number of even the most experienced businesspeople still persist in entering into them. A case on point concerned a couple who orally engaged an estate agent to assist them in finding profitable property investments.
The couple, who were experienced property investors, agreed by word of mouth with the estate agent that he would hunt down undervalued properties for them to buy with a view to resale at a profit. It was common ground that the estate agent was to manage the properties until their resale and that, in return for his services, he would receive half of the net profits realised from the arrangement.
However, his and the couple’s understanding of the precise effect of the agreement was otherwise radically different. The absence of a written contract, drafted by a professional, was a primary source of a dispute that arose between them in respect of three properties purchased by the couple on the estate agent’s recommendation.
Ruling on the matter, the High Court rejected the estate agent’s arguments that the agreement amounted to a formal partnership between them and that he had a proprietary interest in the properties. They at all times belonged, legally and beneficially, to the couple alone. The estate agent’s right to receive payment crystallised only on one or more of the properties being sold and the couple retained control over the timing of any such sales.
The couple’s trust in the estate agent was misplaced in that, without accounting to them, he retained large sums in rent paid in respect of the properties. That, the Court found, was a fundamental breach of contract that entitled the couple to terminate the agreement. The end result was that the estate agent was ordered to pay the couple more than £100,000. The couple having lawfully brought the agreement to an end, he was also no longer entitled to any share in resale profits.
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Partner Note
Arora and Another v Moshiri and Another [2021] EWHC 2230 (Ch)
Royal Park Boathouse Can’t Be Removed by Departing Contractor
Those who are awarded public contracts very often make substantial investments in property and equipment so that they can perform their obligations – but who owns the product of such investments? The High Court considered that issue in a case concerning a lakeside boathouse situated in a royal park.
A company was awarded a contract to operate a public boating service in the park, which was owned by the Crown. It invested a six-figure sum in erecting a new boathouse. After its contract was not renewed at the end of the contractual term, it announced its intention to remove the boathouse.
The company asserted that it retained ownership of the boathouse, which remained a chattel rather than a fixture. It said that the facility had been designed so that it could be assembled in parts and subsequently dismantled. It argued that it had invested in the facility on the basis that it could be removed in the event that its contract came to an end, by the passage of time or otherwise.
The charity that managed the park and the Secretary of State for Digital, Culture, Media and Sport launched proceedings with a view to retaining the boathouse in situ. They sought declarations to the effect that it was constructed to form part of the park and that it was Crown property.
Ruling in the claimants’ favour, the Court found that the boathouse consisted of both its superstructure and the underlying concrete slab to which it was fixed. Partially cut into a slope, it was anchored to the land and was designed to be permanent and immobile. Removal of the superstructure would result in substantial destruction of its components, thus inhibiting the company’s ability to erect it elsewhere.
The purpose for which the boathouse was built was the permanent improvement and enhancement of the land. It was inextricably linked to the boating concession, a service that could only be operated from the lakeside. There was no concerted intention on the company’s part to design the boathouse as a temporary structure that could easily be dismantled and removed.
The contractual documents, whilst not expressly stating who would own the boathouse following its construction, supported the claimants’ case that the company had no proprietary or contractual right to remove any part of the structure. Having been annexed to the land, the building belonged to the Crown.
The Court rejected the company’s plea that it was expressly or impliedly encouraged to believe that, after making a considerable investment in the boathouse, it would retain ownership of the building. Given that the company was contractually bound to fund the facility’s construction, any such belief would not, in the absence of an explicit assurance, have been reasonable. There was nothing unconscionable in the claimants seeking to assert their rights of ownership and occupation.
Partner Note
The Royal Parks Ltd and Another v Bluebird Boats Ltd [2021] EWHC 2278 (TCC)
What Amounts to ‘Actual Occupation’ of Land? Court of Appeal Ruling
A few bits of decaying equipment and a caretaker’s occasional visits were insufficient to establish that an industrial site was actually occupied. The Court of Appeal came to that important conclusion in ruling that the apparently abandoned site reverted to Crown ownership when its corporate registered owner was dissolved.
An Isle of Man company transferred ownership of the site to an English company. The transfer was genuine and properly executed but was not registered at the Land Registry. The Isle of Man company, which thus remained the site’s registered owner, was later dissolved. On the basis that it had obtained title to the site on the Isle of Man company’s dissolution, the Crown sold it for £5,000 to a purchaser who was subsequently registered as its owner under a new title number.
The English company’s claim that it was entitled to be registered as sole proprietor of the site hinged on whether it was in actual occupation of the land at the time of the purchaser’s registration. Following a trial, it lost the argument on that point and a judge granted the purchaser a possession order.
Dismissing the English company’s appeal against that outcome, the Court noted that some physical presence, with a degree of permanence and continuity, is required to establish actual occupation of land. The judge had reached a rational conclusion that neither an unpaid caretaker’s intermittent visits to the site for his own purposes, nor the presence of an immovable digger and two apparently disused shipping containers, was sufficient to establish actual occupation. Anyone inspecting the site would have concluded that it had been abandoned.
The Court found that, in the absence of actual occupation by the English company, the site passed to the Crown by escheat, one of the last relics of feudalism still to be found in English law. Escheat is based on the principle that all land in England is owned by the Crown and that no land can be without an owner. When the Isle of Man company ceased to exist on dissolution, therefore, the site’s freehold was terminated and it reverted to the Crown.
Contact us for expert advice if you are involved in a land ownership dispute.
Partner Note
Pennistone Holdings Ltd v Rock Ferry Waterfront Trust [2021] EWCA Civ 1029
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These articles are provided for general interest and information only. They do not constitute legal advice. Whilst every effort is made to ensure that the content accurately reflects the law in England as at the date of its transmission, no liability is accepted for any loss or damage arising from any act or omission resulting from any information contained herein.