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Footpath Diversion Means No Need to ‘Moooooove’

I am a specialist agricultural associate solicitor with Lanyon Bowdler, having joined at the start of the year. I have specialised in agricultural property matters since I qualified as a solicitor in 2007, having grown up on a farm in Oxfordshire.

I was recently contacted by an NFU member with a view to diverting a footpath in Shropshire. The footpath was in an unfortunate location, immediately adjacent to a large cattle shed and also very close to a site, behind which was earmarked for an additional cattle shed of the same size.

It was necessary for the two sheds to be parallel to maximise the benefit. There had also been instances of members of the public disturbing the cattle. The NFU member considered that it would be better for the footpath to be diverted, both from a health and safety perspective for members of the public using the footpath, but also, and a crucial point for the NFU member, for the long term sustainability of the farm (where the proposed development might otherwise have been stifled by the location of the footpath).

I worked with the NFU member and submitted the application to ensure that the footpath was diverted away from the farm buildings and the main yard. I then liaised with the council’s public rights of way team and ensured that the footpath was diverted under 119 of the Highways Act 1980 and also under section 53A (2) of the Wildlife Countryside Act 1981.

I achieved a successful result in a short time, and was granted the exact diversion modification requested within the application. The NFU member was delighted and the additional barn is now in place, looking fabulous, with lots of happy farmyard residents!

I attained Fellowship of the Agricultural Law Association in 2009 and have experience in a wide variety of agricultural property transactions, including land sales and purchases.

I also act for lenders, advising on partnership agreements, rights of way issues, adverse possession matters, sports and recreational sales, deeds of easement, option and overage agreements, contract farming agreements and share farming agreements.

I have been listed within the agricultural sections of Chambers UK since 2015 and The Legal 500 publication since 2018 (the two main legal ‘go to’ directories).

For more information about this or any other agricultural matter, please contact our agricultural team.

Footpath Diversion Means No Need to ‘Moooove’

I am a specialist agricultural associate solicitor with Lanyon Bowdler, having joined at the start of the year. I have specialised in agricultural property matters since I qualified as a solicitor in 2007, having grown up on a farm in Oxfordshire.

I was recently contacted by an NFU member with a view to diverting a footpath in Shropshire. The footpath was in an unfortunate location, immediately adjacent to a large cattle shed and also very close to a site, behind which was earmarked for an additional cattle shed of the same size.

It was necessary for the two sheds to be parallel to maximise the benefit. There had also been instances of members of the public disturbing the cattle. The NFU member considered that it would be better for the footpath to be diverted, both from a health and safety perspective for members of the public using the footpath, but also, and a crucial point for the NFU member, for the long term sustainability of the farm (where the proposed development might otherwise have been stifled by the location of the footpath).

I worked with the NFU member and submitted the application to ensure that the footpath was diverted away from the farm buildings and the main yard. I then liaised with the council’s public rights of way team and ensured that the footpath was diverted under 119 of the Highways Act 1980 and also under section 53A (2) of the Wildlife Countryside Act 1981.

I achieved a successful result in a short time, and was granted the exact diversion modification requested within the application. The NFU member was delighted and the additional barn is now in place, looking fabulous, with lots of happy farmyard residents!

I attained Fellowship of the Agricultural Law Association in 2009 and have experience in a wide variety of agricultural property transactions, including land sales and purchases.

I also act for lenders, advising on partnership agreements, rights of way issues, adverse possession matters, sports and recreational sales, deeds of easement, option and overage agreements, contract farming agreements and share farming agreements.

I have been listed within the agricultural sections of Chambers UK since 2015 and The Legal 500 publication since 2018 (the two main legal ‘go to’ directories).

For more information about this or any other agricultural matter, please contact our agricultural team.

Six Things to Consider When Entering into a Conditional Contract

A conditional contract is conditional on certain criteria being met and/or certain events taking place. Usually, this is obtaining a planning permission satisfactory to the purchaser developer.

So, What Should You Consider?

  • Have the conditions under the contract been adequately drafted? Ambiguous or vague conditions can lead to uncertainty in respect of ascertaining whether or not conditions have been satisfied.
  • Is the length of the contract sufficient to enable planning permission to be obtained and/or for the conditions to be satisfied and does it allow for planning appeal?
  • What happens if the conditions under the contract are not satisfied? What are the parties’ obligations? Should all or part of the deposit be forfeited, if any?
  • The land will often need to be sold with vacant possession. The parties should consider whether there are any existing tenancy agreements or licences affecting the land – these will need to be terminated in advance of the completion date.
  • The purchase price can be a fixed price, or can be a percentage of the market value of the land with the planning permission in place. Does the contract provide a means of agreeing or ascertaining the market value?
  • From a landowner’s perspective, tax advice should also be sought in respect of whether an option to tax in relation to VAT should be made in respect of the land being sold. From a developer’s perspective, the developer should ensure that a valid VAT option to tax has been made.

Of course, when entering into any form of conditional contract you need to seek legal advice and our team are on hand to assist and to guide you through the process. For further information, please contact us.

Planning Enforcement: Beware of the PCN

Local planning authorities have various powers to compel a landowner to provide information about land in their areas. This includes the power to serve Planning Contravention Notices (PCNs), the purpose of which is to obtain information about alleged unauthorised development. PCNs, although discretionary, are an important step in planning enforcement investigations.

PCNs are not actual enforcement notices, which require the person who receives them to stop or remove unauthorised development. Therefore, there might be a temptation for landowners or other recipients of PCNs, and even local planning authorities, to be somewhat relaxed about responding to them or following them up. However, failing to respond properly to a PCN attracts criminal liability and the case of Russnak-Johnston v Reading Magistrates Court [2021] EWHC (Admin) 112, which was decided on 26 January 2021, demonstrates why stakeholders overlook the importance of PCNs at their peril.

The purpose of a PCN is to find out information about an allegation of breach of planning control, which could be an unauthorised change of use or building or other operations without planning permission or a failure to comply with a condition that is on a planning permission. A PCN can require the landowner or occupier to provide a wide range of information including what is going on the land, when the allegedly unauthorised activity started, who is carrying out the unauthorised activity and what interest they have in the land. As wide as this power is, case law is clear that a PCN is not to be used as a “fishing expedition” in that the authority must have some evidence beforehand of unauthorised development and the information sought in the PCN must be aimed towards that development. The recipient of a notice has 21 days to respond.

What Will Be the Consequence If the Landowner Fails to Respond to the PCN?

Failure to respond to a PCN or to intentionally or recklessly provide false information in response is a criminal offence as is failure to comply with any subsequent enforcement notice. While the PCN-related offence carries a limited fine and is a ‘summary offence’, which means it can only be tried in the magistrates’ court, the offence related to the enforcement notice is more serious. Failure to comply with an enforcement notice carries an unlimited fine (as in there is no limit on the fine that can be imposed on the defendant) and can be tried in either the magistrates’ or Crown Court.

Therefore local planning authorities focus quite naturally on the enforcement notice. If somebody blatantly lies in response to a PCN, it is more common for authorities to use that fact to attack their credibility in an enforcement appeal than to go through the trouble of prosecuting the person. Also because it is a summary offence, the authority has six months, from the commission of the offence, to prosecute. However, it should be noted that failure to comply with a PCN (like an enforcement notice) is what is known as a ‘continuing offence’ which means that there is an ongoing obligation to provide the information requested by the PCN, even after the end of the initial 21-day deadline.

What Happened in the Case of Russnak?

The case of Russnak centred around a site, that had permission for the keeping of horses for recreational use, which the local planning authority suspected was actually being used for residential purposes and as a commercial livery. The authority served two PCNs. The first one related to residential use and the second to commercial livery uses. In the second PCN, the claimant was asked to provide leases, agreements and other documents relating to the commercial use which she did not.

An enforcement notice was served and the documents requested were produced during the appeal. The enforcement notice was withdrawn but the local planning authority decided to prosecute the claimant for failing to provide information and providing false information in response to the PCNs. The claimant applied for a judicial review and quashing of the magistrates’ decision to proceed with the prosecution.

The first point the claimant took related to the definition of ‘information’. In my experience, a PCN usually consists of a list of questions and it is more unusual to see requests for documents as in Russnak. The High Court did not accept the claimant’s argument that asking for documents fell outside the definition of ‘information’ in the legislation and that therefore the authority had exceeded its powers. The court decided that that the word "information" clearly included information in the form of the document.

The next point from the claimant was that the six-month time limit to prosecute the offences had long expired by the time the local planning authority started the prosecution. The court interpreted the legislation to mean that the offence of failing to answer a question on the PCN was a continuing offence. This meant that the six-month time limit started afresh on every day after the initial 21-day period that the information was not provided. However, the offence of providing false information was committed once and for all when the false information was provided and could not a continuing offence.

The case is a good reminder to take PCNs seriously, even though they are not actual enforcement notices. Failing to respond to them could have a number of consequences, which include affecting future compensation rights, which are outside the scope of this note, and affecting the landowner’s credibility in any enforcement appeal. Finally, as the case says, a recipient of a notice cannot relax once the six-month period from the day that they are supposed to submit their response expires. The authority’s six-month time limit starts afresh every day that they fail to respond to the PCN and as the case demonstrates, in the right circumstances, authorities are willing to prosecute for the offence of failing to respond properly to PCNs.

Electronic Communications Code Consultation

The Electronic Communications Code (“the Code”) came into force on 28 December 2017. Since then there have been several high profile disputes between the operators of telecom mast sites and landowners that have been resolved by court rulings. Not all of the rulings have gone in favour of the operators and some have denied operators rights under the Code.

The government is concerned that the Code is not operating in the way it was originally intended and recently opened a consultation on the shape, scale and scope of alterations to the Code. The consultation period ends on 24 March 2021.

The consultation is focusing on three areas of concern:

Obtaining and using Code Agreements, including failures to respond to requests for Code rights.

Low rents and concerns over the new Code rights may have resulted in landowners not wanting anything to do with Code Agreements and burying their heads in the sand when asked to grant Code rights. This may be causing delay in securing new mast sites and problems with the roll out of 4G and 5G networks.

The right to upgrade and share – when should these rights be available and what should happen when the conditions for automatic rights are not met? The government is also consulting on limited retrospective rights to share equipment installed before December 2017.

Operators occupying under old agreements cannot use the new automatic sharing rights under the Code. It looks like the government is considering retrospectively imposing these sharing rights in old pre-Code agreements in limited circumstances. This might be where sharing is required in the public interest, eg to expand networks without delay. If this suggestion is implemented there are likely to be disputes over the operators’ rights to exercise the new sharing rights.

Difficulties regarding the renewal of expired agreements. There were a number of court cases in 2019 and 2020 where operators failed to persuade the courts to impose Code right.

  • on a non-occupying landowner (a third party operator occupied the property);
  • where the occupying operator was holding over under an expired lease that was protected by the Landlord and Tenant Act 1954; and
  • where an operator was occupying as a tenant at will after the expiry of a lease that was outside of the security of tenure provisions of the LTA 1954. The Court held the operator had no rights under either the old telecommunications code or the Code and could not apply for temporary rights.

The court’s decision in the second case was confirmed by the Court of Appeal in January 2021.

The government is likely to close the loopholes in the Code that were exposed by the recent court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

The consultation may be the result of lobbying by operators who want to revise the Code to address its perceived shortcomings in the Code and the “loopholes” exposed by the recent Court decisions. Landowners will need to make their voices and concerns heard through their industry representatives (e.g. the NFU and the CLA) if they want to avoid or limit additional or enhanced rights being granted to operators or at least ensure that provisions are included in the revised Code to protect the interests of landowners.

The government is likely to close the loopholes in the Code that were exposed by the recent Court decisions, where Code rights were not imposed when older agreements had expired. Landowners should not be surprised if the consultation also results in additional rights being granted to operators and some of those rights may be retrospective and affect old agreements that were made before the Code came into effect in December 2017.

Common Intention Constructive Trusts

A recent case in the High Court highlighted the importance of using the correct legal structure or vehicle to hold business assets.

In Oberman v Collins (21 December 2020) an unmarried couple had built up a portfolio of investment properties over 20 years. Some of the properties were owned by one person, some by both and some by a company, in which both were shareholders.

When the couple separated one of them applied for a court order to ensure they had a 50% interest in all of the properties. The application was based on that person making financial contributions, working unpaid and giving their partner day-to-day control of the portfolio, whilst providing bank guarantees and assuming financial liabilities.

The court rejected the claim that there was a business partnership, but did accept there was a common intention constructive trust, even though the case concerned investment properties and not the family home. It did not matter that the case concerned a fluid portfolio of properties provided the trust was established. If the judge was wrong about that point there could be a common intention constructive trust for each property that was purchased because he found that the couple intended to acquire each property in equal shares. This finding was based on the couple’s agreement about the portfolio and the actions taken as regards the rents and sale proceeds that were received.

The court agreed the applicant’s failure to protect their interest in the property was inconsistent with their argument that there was a common intention the couple would have equal shares in the properties. However, the court found that because the failure to protect those interests prejudiced the applicant, it supported their claim.

It is important to consider, from the start, how business assets will be owned in order to protect the interests of all of the investors in the business and to keep this issue under review as a business develops.

When building up a property portfolio, eg buy-to-let houses, it is important that the properties are held within an appropriate legal structure and that the interests of all of the investors in the property business are properly protected. Legal advice should be obtained at an early stage to decide whether to use a formal partnership agreement or a company. If a company is formed, is a shareholders’ agreement required? Alternatively, is a declaration of trust appropriate to record the investors’ interests in the properties and to protect both of their positions?

Obtaining good legal advice at any early stage can avoid costly disputes and litigation later on. For more information please contact us.

Latest News

18 Jan 2021

Common Intention Constructive Trusts

A recent case in the High Court highlighted the importance of using the correct legal structure or vehicle to hold bu...

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