Trowers' property litigation weekly update 


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This week we report on Ofcom's consultation on the form of warning notices to be served where landlords fail to respond to operators' requests to access multi-dwelling units. We also cover a case about responsibility to maintain a horizontal floor slab in a residential apartment building and a case concerning towns and village greens. All this together with our usual dose of positive news, quiz questions and insights from around the firm.

Ofcom consults on notices for gaining access to property or land
In March 2021, the Telecommunications Infrastructure (Leasehold Property) Act 2021 introduced a new process for telecoms operators to gain access to multi-dwelling units to install, upgrade or maintain their equipment where the tenant in occupation has requested an electronic communication service but the landlord has repeatedly failed to respond to the operator’s requests for access. The new process requires the use of additional template notices when notifying landowners about their intention to seek access to their property. Ofcom has opened a consultation on the form of those notices which include a warning notice (which must be issued twice) and a final notice. Ofcom is also making minor changes to the initial request notice which must be sent to landowners to alert them to the need for access. Comments on the draft template notices can be submitted here until 7 December 2022.

Land must be identified for potential development in the local plan to defeat an application to register a town or village green
The Commons Act 2006 (the 2006 Act) provides a right to apply for the registration of a town or village green (TVG) in relation to land which has been used as of right for "lawful sports and pastimes" for at least 20 years by a significant number of inhabitants within a particular neighbourhood. One effect of the statutory protection given to a TVG is that most forms of development are then prohibited. In 2013 the 2006 Act was amended because of concerns that the TVG registration system was being used to prevent development which had been proposed through the planning system. Now, the right to register land as a TVG is disapplied if a "trigger event" takes place. One such "trigger event" is where the local development plan identifies the land for "potential development".

In R (on the application of Bellway Homes Limited) v Kent County Council [2022] EWHC 2593 (Admin) an application had been made to Kent County Council (KCC) by an action group to register land at Two Fields in Westbere (some of which is owned by Bellway Homes) as a TVG. A central issue to the application was whether the land (which was located in a "Green Gap" to which a policy within the local plan applied) was to be treated as having been identified for potential development and therefore whether a trigger event had occurred. A non-statutory public inquiry had determined on advice from leading Counsel that a trigger event had not occurred and KCC accepted that recommendation. The consequence of this was that an application to register the site as a village green was permissible. Bellway Homes, no doubt keen to develop the land, then sought a judicial review of KCC's decision.

Bellway Homes argued that the policy in question (which set out the criteria to be applied in considering  development proposals within "Green Gaps") identified "Green Gaps" for "potential development" and that this was sufficient to constitute a trigger event notwithstanding certain other constraints in the policy aimed at maintaining green spaces. The judge acknowledged that in deciding whether a trigger event had occurred the statutory test was whether the land was identified for potential development, not just development on its own. However, he was not satisfied that the policy in question read on its own or in the context of the local plan as a whole identified land in the Green Gaps for potential development. The policy simply provided criteria for assessing the acceptability of proposals which were put forward. There was no suggestion in the local plan that there was any need for development in the Green Gaps and the application land lay outside a settlement boundary where there was no presumption in favour of development. A trigger event had not therefore occurred and KCC was entitled to a declaration on that basis. The application for judicial review was dismissed and KCC had jurisdiction to determine the TVG application.

When assessing policies within a local plan in order to consider whether a trigger event may have already occurred due the content of a development plan document (or emerging development plan document) caution should be observed in cases where the policy relied upon is not a specific site allocation. Our award winning planning team are able to undertake reviews of local plan policies and advise on whether specific policies may constitute a trigger event that could give protection from TVG applications. 

Service charges: liability for repairs to a horizontal concrete roof slab
In Tann v Bhundia and others [2022] UKUT 268 (LC) the Upper Tribunal, (previously a part what was  the Lands Tribunal), was asked to determine the extent of the freeholder's liability to repair a horizontal concrete slab that formed part of an extended roof.

The first respondents were the freehold owners of a house comprising two maisonettes situated in London, NW10. The ground floor flat was held on a long lease by the appellant. The first floor flat was held on a long lease by the second respondent.

The ground floor flat had been horizontally extended so that it protruded out from the first floor flat above. The roof of the extension became a balcony for the first floor flat. This extension consisted of the concrete slab in question, a ceiling below and an asphalt surface above. After some time, this concrete slab became in need of repair.

The freeholders applied to the First-tier Tribunal under section 27A(3) of the Landlord and Tenant Act 1985 for a determination as to whether they were liable to repair the concrete slab and, if so, whether they could recover the costs of doing so from the lessees by way of service charge.

The First Tier Tribunal found that although the freeholder's repairing obligation extended to party walls and party structures, the freeholders did not use nor were capable of using the concrete slab between the maisonettes and were not liable for its repair under either of the leases. The appellant appealed.

Crucially, the Upper Tribunal found that both leases were silent in relation to the concrete slab and remainder of the horizontal structure between the maisonettes. The Upper Tribunal found that (in the absence of an express reservation) when there has been a demise of part, the definition in the lease of the premises must include the external walls enclosing the part divided horizontally or vertically. The leases in question contained no such express reservation and the Upper Tribunal found that both leases included the external walls. In addition, the Upper Tribunal found that the horizontal structure between the maisonettes, including the concrete slab, was not reserved to the freeholders.

The Upper Tribunal determined that the concrete slab and the horizontal structure between the two flats were demised with the ground floor and the appellant was liable for its repair. Finally, the Upper Tribunal determined that the leaseholder of the first floor flat (second respondent) was required to contribute to contribute to the cost of repairs to the concrete slab equally. The leaseholder of the ground floor flat (appellant) could require the freeholders to enforce that covenant with any payment received passed onto the appellant.

And finally….
On 3 November MPs are due to hold a public debate on the ‘A fairer private rented sector’ White Paper. A full transcript of the debate will be available shortly afterwards on Commons Hansard.

Insights from around the firm

Positive news

  • The first baby bison has been born in the wild in the UK for the first time in thousands of years.  The calf was part of a herd that were reintroduced into a 500 acre woodland area in Kent by the Kent Wildlife Trust and the Wildwood Trust, and the calf's mother was already pregnant when she arrived in the UK.  This has set the reintroduction of the species in the UK off to a booming start, which is said will help restore large-scale habitat from degraded land, boost biodiversity and play a role in tackling the climate crisis.
  • An old court house in London, Blackfriars County Court, is set to become the host of one of the largest rooftop forests in Europe, with 125 trees and more than 10,000 plants being planted in what will be called "Roots in The Sky".  It will also feature a bar, swimming pool and private terraces for the offices below.  It is hoped that it will be able to reintroduce wildlife to the city.
  • The release of Status Report published by the Global CCS Institute, an international think tank working to accelerate the deployment of carbon capture and storage projects has been released ahead of COP 26, which shows an increase of carbon capture and storage projects of 44% over the past 12 months.  The CEO of the Global CCS Institute believes the outlook for climate action has never been more positive.
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