LAWYERS TO THE REAL
ESTATE & CONSTRUCTION
INDUSTRY
www.klng.com
Autumn 2006
Overriding Interest
Pilot Scheme for Planning
Delivery Agreements to speed
up large developments
The Government's seemingly relentless
reform of the planning system has taken
a further step forward, with the
Government launching a new pilot to
improve and speed up planning for
large and complex development
projects. The idea being piloted is that
developers, local planning authorities
and other stakeholders in the
development process commit to work to
an agreed project plan.
This plan ought to set out a timeframe
within which the decision is to be made
and the resources required from the
developer, local authority and other
parties, including the community
affected by the proposal. Within its
scope will be the setting out of the
issues to be addressed by the
application, including sustainability and
design issues.
The outcome of the application is not a
foregone conclusion, and the purpose of
the new agreement is not to alter the
outcome of the planning process, but
the objective of the new system is that
the process should become more
efficient, with clearer responsibilities
for all parties involved.
The agreements are voluntary.
Pilot projects have already benefited
from introductory workshops, and the
pilot agreements are being monitored
between February and October 2006.
The pilots are a joint initiative between
DCLG, the Planning Advisory Service
and English Partnerships Advisory
Team for Large Applications (ATLAS).
Welcome to the Autumn Edition.
Reflecting continued activity in the
property sector, we are pleased to
report that our Real Estate practice
group has grown once more with a
number of recruitments. In this
edition we are pleased to introduce
you to our new joiners on page two.
Meanwhile it seems that rumours over
the Summer that Planning Gain
Supplement is to be scrapped were,
sadly, untrue. Planning Delivery
Agreements, another hot topic in
planning circles, are reviewed on this
page.
After a stay of execution, Fire
Certificates are finally to be replaced
as of 1 October 2006 (see OI Spring
2006). New CDM regulations are due
to come into force in April 2007 which
we will analyse in a future issue.
Contents
Pilot scheme for Planning Delivery
Agreements
1
Profiles - new joiners of the team
2
Autumn deals
3
Legal cases
4
Who to contact
4
Overriding Interest
Profiles
Martyn Hanmore
Suzanne Nethaway
Esther David
Martyn is an assistant in the Planning
and Environment group within the
Real Estate practice group. He joined
the firm in July 2006 bringing with him
experience in Planning and
Environmental law gained here in the
UK as well as from Australia where he
qualified in 2003.
Suzanne is a newly qualified solicitor
who recently completed her training
contract with the firm having joined
K&LNG as a trainee in September
2004. During this time Suzanne has
gained experience in contentious and
non-contentious general commercial
matters and many areas of general
commercial real estate and landlord and
tenant work
Esther joined the Planning and
Environment group in May 2006 to
lead the firm’s environmental practice
following the departure of partner Elisa
de Wit who has returned to her native
Australia. Elisa and Esther by strange
coincidence went to the same school,
although Esther is not Australian! She
advises on contentious and noncontentious environmental, land use
regulation and health and safety issues.
These include contaminated land and
asbestos liabilities, environmental
licensing (including integrated
pollution prevention and control and
discharge consents), waste regulation,
environmental risk transfer and
directors' responsibilities. Esther has
advised clients who are under
investigation for breaches of
environmental/health and safety
regulations and represented clients who
are being prosecuted for breaches of
such regulations. Her stand alone
clients have included property owners,
developers, companies in the
manufacturing, food,
telecommunications and waste sectors,
privatised utilities (gas, electricity, rail)
and government authorities.
Martyn served as Associate to a Judge
of the Planning and Environment
Court in Queensland and completed
his training with Deacons, where he
then worked as a solicitor in a leading
Environment and Planning practice in
Australia. In the UK he spent some
time as the in-house planning lawyer
for Cambridge City Council before
joining K&LNG.
Marianne Pomfret
Amy Shann
Amy is a newly qualified solicitor who
completed her training contract with
the firm having joined K&LNG as a
trainee in September 2004. During this
time Amy has gained a wide range of
experience in many areas of general
commercial real estate and landlord and
tenant work.
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AUTUMN 2006
Marianne is an Assistant in our Real
Estate practice group. She deals with
all aspects of commercial property
transactions including property finance
and letting. Prior to joining the firm,
Marianne trained with a firm on the
South coast of England before moving
to a firm in the West End of London.
www.klng.com
Autumn
deals
Ram Brewery
Partners Wayne Smith and Kevin
Greene led the team advising
Young & Co.'s Brewery, P.L.C. on
the disposal of the historical Ram
Brewery site in Wandsworth, South
London, to Minerva PLC for £69m.
The sale included the nearby
Buckhold Road site but excluded
the Brewery Tap Public House.
The latter is the site of the original
Ramme Inn, the origins of the
Brewery dating back to 1539.
Wayne Smith commented: “We
have been delighted to be involved
with Young & Co during the
feasibility period culminating in the
disposal of the two sites. Having
acted for Young's for some years
and knowing Young’s has been
brewing beer at the Ram Brewery
site since 1831, we were very
conscious of their standing in the
local community and concerned to
ensure that the disposal was
handled as sensitively as possible.”
Birmingham PFI
We advised on the complex
property aspects of a PFI deal
relating to the construction of two
new hospitals in Birmingham which
will be the second largest PFI
healthcare facility after Barts. We
advised a joint venture composed of
Balfour Beatty Construction
Limited and Haden Young Limited
on the £553m PFI construction
contract. Partner Steven Cox and
assistant Eleanor Smith gave advice
on issues such as ownership of two
sites by separate NHS Trusts, the
existence of occupational tenants
within the sites who are to remain
during the construction works and
historic restrictive covenants
preventing the site's use as a
"lunatic asylum" (part of the new
building was to be a mental health
hospital). The project is due to be
completed in 2012.
Victoria development site
We acted for well-known London
real estate investors and developers
in acquiring 50% of the units in a
unit trust owning a large
development site in Victoria. The
team at K&LNG comprised
London head of Real Estate Piers
Coleman, Partners Richard
Woolich, Howard Kleiman,
Redmond Byrne and Nick Wargent
and associate Peter Young.
K&LNG Partner Sebastian Charles
(Planning & Environment),
associate Chris Major and assistant
Paul Alger (Real Estate) also
advised on this transaction.
AUTUMN 2006
3
Overriding Interest
Legal cases
Right of Light
Repairs
Business Tenancies
An occupier of an office block was
refused an injunction to restrain a
nearby development that was going to
interfere with its right of light because
some of its windows had been boarded
up so no prescriptive right had been
acquired in respect of those windows
and, in any event, the injury that would
be suffered was small.
A residential landlord admitted
breaching his lease repairing
obligations. For the 35 month period of
the breach during which the tenant
remained in occupation, it was held
that the first instance judge's award of
£20,000 was excessive. For the second
period of 21 months when the tenant
lived elsewhere, the award of half the
rental value was said to be fair.
Where a business tenant was refitting
premises that had been sublet before
retaking occupation and was using the
car parking rights granted to it under
the lease, it was held that the tenant
was in business occupation for the
purposes of the 1954 Act.
Comment: The Court took the view
that an injunction would be oppressive
and unjust.
Comment: The reduction in rental
value was said to be an appropriate
starting point for assessing damages.
Tamares (Vincent Square) -v- Fairpoint
Properties, ChD
Earle -v- Charalambous, CA
Estate Management
Contract Assignment
Where a tenant of a shopping centre
covenanted to use reasonable
endeavours to keep the units let but,
without good reason, declined to sublet
a unit to a major retailer, the landlord
obtained a mandatory injunction
requiring the tenant to execute a
sublease.
A landowner obtained a survey on a
sloping development site and then sold
the site. A landslip occurred when the
purchaser tried to develop the site.
The purchaser then acquired by
assignment rights in respect of the
survey and successfully sued the
surveyor for substantial damages.
Comment: The landlord would have
suffered a substantial loss had the
sublease not been executed.
Capita Trust Co -v- Chatham Maritime
J3 Developments , ChD
Comment: : The surveyor's argument
that only the nominal damages that the
landowner could have recovered should
be recovered by the purchaser were
dismissed.
Comment: It was said that occupation
by another business occupier or nonbusiness use would have prevented this
finding.
Pointon York Group -v- Poulton, CA
Sale Contracts
A purchaser served a notice to
complete in respect of a purchase
under an option but, on the day fixed
for completion, was not itself ready,
willing and able to complete and, as a
result, the vendor rescinded the
contract. It was held that there was no
basis for an award of specific
performance in favour of the purchaser.
Comment: The Court did not accept
the purchaser's estoppel arguments.
Northstar Land -v- Brooks, CA
Technotrade -v- Larkstore, CA
Who to Contact
For further information contact
Steven Cox
scox@klng.com
Milton McIntosh
mmcintosh@klng.com
T: +44 (0)20 7360 8213
T: +44 (0)20 7360 8259
Susan Henning
shenning@klng.com
T: +44 (0)20 7360 8236
Kirkpatrick & Lockhart Nicholson Graham (K&LNG) has approximately 1,000 lawyers and represents entrepreneurs, growth and middle market
companies, capital markets participants, and leading FORTUNE 100 and FTSE 100 global corporations nationally and internationally.
Kirkpatrick & Lockhart
Nicholson Graham LLP
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London EC4N 6AR
www.klng.com
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K&LNG is a combination of two limited liability partnerships, each named Kirkpatrick & Lockhart Nicholson Graham LLP, one qualified in Delaware,
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AUTUMN 2006
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