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If in-depth analysis is what you need, the chances are that you will find it here. Our experts regularly produce articles on legal issues and upcoming changes and you will find them all here.
  • 10/07/2017 What does the presumption in favour of sustainable development mean?

    Can planning permission be granted for sustainable development within the meaning of the National Planning Policy Framework ("Framework") which is contrary to an up-to-date development plan and where the local planning authority can demonstrative a five year supply of housing land?

    There have been examples where appeal inspectors and local planning authorities have exercised their respective planning judgements to conclude that development (in most cases, residential development) is sustainable and therefore benefits from a presumption in its favour within the National Planning Policy Framework notwithstanding that the development is contrary to the relevant policies of an up-to-date Local Plan and the local planning authority can demonstrate a five year supply of housing land. In an earlier article, Chris May considered Green J's judgement in East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another [2016] EWHC 2973 (Admin). That judgement has now been considered in the Court of Appeal and once again, there has been much discussion about the implications of this decision within the legal press.

    By way of reminder, the case concerned the grant of planning permission for 150 dwellings on appeal where the Borough Council and appellant agreed that the proposed development was contrary to the strategic policies of the up-to-date Local Plan and there was a 5 year supply of housing land, both of which were accepted by the Inspector. However, the Inspector concluded that the proposed development accorded with the three dimensions of sustainable development identified in the Framework at paragraph 7 and so represented sustainable development as defined in the Framework. The Inspector then concluded that the Framework's presumption in favour of sustainable development was to be given such weight as to rebut the presumption of refusal arising from the conflict with the Local Plan.

    Put simply, the Inspector concluded the following:

    1. The Local Plan was recently adopted and policies regarding the location of housing and the protection of the countryside were up-to-date;
    2. The proposed development was contrary to the Local Plan and refusal was presumed unless material consderations indicated otherwise;
    3. The Framework and the presumption in favour of sustainable development was a material consideration;
    4. The proposed development in his judgement complied with the definition of sustainable development set out in the Framework;
    5. The proposed development accordingly took support from the Framework;
    6. The support from the Framework in his judgement outweighed the conflict with the Local Plan and therefore this material consideration indicated planning permission should be granted.

    Green J held that the Inspector misdirected himself as to the application of the Framework, especially paragraph 14, in that development which does not comply with an up-to-date Local Plan cannot represent sustainable development within the terms of paragraph 14 and so cannot benefit from a presumption in favour of sustainable development within the Framework. Whilst there is a discretion to grant planning permission for schemes which are in conflict with the development plan and do not benefit from the presumption in favour of sustainable development, such discretion is narrow. Green J also held that the Inspector erred in a failure to properly set out the planning balancing exercise undertaken by neglecting to analyse the "cons" inherent in conflict with the Local Plan.

    The Court of Appeal dismissed the appeal by Barwood. It is very important to note that on the face of the judgement, counsel for Barwood did not ultimately try and argue that the presumption in favour of sustainable development was of general application regardless of whether there was a conflict with an up-to-date Local Plan or the local planning authority could demonstrate that there was a five year supply of housing land. One can only guess why this argument was not run but it seems sensible to assume that Barwood did not ultimately consider that the argument had any merit. That said, Lindblom LJ did consider in some detail when the presumption applies.

    The judgement spends some time summarising the position following the Supreme Court decision in the Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 36, etc case and reinforces a number of areas of settled law including:

    • the primacy of the development plan and the presumption in favour of the development plan unless material considerations indicate otherwise set out in section 38(6);
    • policies are not statutory or contractual provisions and should not be construed as such. The proper interpretation of planning policy is a matter of law for the court but application is for the decision-maker;
    • the Framework is a material planning consideration but does not have the force of statute and in fact reinforces the presumption in favour of the development plan. However, because it is Government policy, it is likely to command significant weight but the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense;
    • the key question is not how to define individual policies but whether there is a five year supply of housing land. Any shortfall is enough to trigger the operation of second part of paragraph 14 and the "tilted balance". Paragraph 14 sets out how the presumption in favour of sustainable development operates when a local planning authority is unable to demonstrate a five year supply of deliverable housing sites but also the opposite case, where there is an up-to-date Local Plan and it is able to demonstrate the necessary five-year supply.

    Having quoted the salient parts of the inspector's decision, Lindblom LJ then went on to consider conflicting judgements in the Planning Court. Coulson J in the Wychavon District Council case concluded that "it is quite wrong to say that a presumption in favour of sustainable development does not exist in the NPPF outside paragraph 14". In contrast Jay J concluded in Cheshire East Borough Council v Secretary of State for Communities and Local Government, Renew Land Developments Ltd [2016] EWHC 571 (Admin) that the concept of "sustainable development" involved striking a balance between different considerations some of which favour the grant of planning permission and some which do not and the Government's policy in this regard is to be found in paragraph 14. Jay J rejected the notion of a "freewheeling exercise of discretion without parameters". Finally, Holgate J's conclusions in the Trustees of the Barker Mill Estates case were considered. He was clear that "the presumption in favour of sustainable development is solely contained in paragraph 14 of the NPPF".

    Lindblom LJ accepted Holgate J's analysis and concluded:

    1. The "presumption in favour of sustainable development" is not a statutory presumption. It requires a planning decision-maker to exercise planning judgement within the balancing exercise mandated by section 38(6).
    2. Paragraph 14 describes what the presumption means in clear and complete terms and the circumstances in which it is to operate. It is the presumption in paragraph 14 which is the so-called "golden thread running through plan-making and decision-taking". There is no other such presumption in the Framework.
    3. When the duty in section 38(6) is lawfully performed a development which does not earn the presumption or the "tilted balance" in its favour may still merit a grant of planning permission. This is the territory of planning judgement. In the absence of a five year supply of housing land this may lead to the presumption or the "tilted balance" in its favour but will not necessarily be conclusive in favour of granting permission. Again, this will be a matter of planning judgment.

    Counsel for Barwood did not try and argue that the conclusions of Jay J and Holgate J were incorrect or to defend Coulson J's analysis. Instead he argued that on a fair reading of the inspector's decision he had done what he was required to do by carrying out his duty under section 38(6). He argued that the inspector had in fact accepted that the presumption was not engaged and that in finding that the development was sustainable, he had simply carried out a straight balance of harm against benefit. That was decisively rejected by Lindblom LJ. He concluded that the inspector had not left out of account the wider "presumption in favour of sustainable development". He had explicitly taken it into account and did so as if it were a material consideration weighing in favour of the proposal and in doing so he fell into error. Lindblom LJ rejected submissions that the court's discretion should nevertheless be exercised not to quash the decision as it was inevitable that even if the inspector had not erred in law, planning permission would still have been granted. Lindblom LJ concluded that the proposal was clearly contrary to three policies in the recently adopted Local Plan and was therefore contrary to the statutory presumption in favour of the development plan. In addition, the inspector had made a material error of law and had he not made that error it is possible that he would not have come to the same conclusion. He could not conclude that the decision would inevitably have been the same.

    The implications for development are significant; it means that development which is in conflict with an up-to-date development plan and where the local planning authority can demonstrate a five-year supply will be concluded not to benefit from the presumption in favour of sustainable development within the terms of paragraph 14 of the Framework and therefore there can be no presumption in favour of granting planning permission; in fact paragraph 12 indicates it should be refused unless material considerations indicate otherwise. Planning permission could still be granted but only to use the words in Green J's judgement in the Planning Court "as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan". Unfortunately, neither Green J nor Lindblom LJ needed to consider what would constitute exceptional circumstances but acknowledged that, provided that the decision maker does not misdirect himself/herself as to the principles, this remains the legitimate exercise of judgement.

    The judgement clearly represents a substantial reduction in the prospects of securing planning permission for development which is not consistent with an up to date Local Plan and where the local planning authority can demonstrate a five-year supply. It will continue to be difficult to argue that planning permission should be granted for development which is "sustainable" and therefore benefits from support in the Framework even though it may conflict with the relevant policies of the development plan.

    More focus will now need to be given to establishing that the relevant policies are absent, silent or out-of-date to ensure that development which conflicts with the development plan can be considered to benefit from the presumption in favour of sustainable development in the terms of the Framework. Clearly, housing land supply is going to continue to be one of the most productive ways of establishing that relevant housing policies are out of date and arguments as to consistency with the Framework of policies are also going to feature heavily.

    If it is not possible to establish that the relevant policies are absent, silent or out-of-date, arguments are likely to be on whether the development complies with the development plan as a whole notwithstanding identified conflicts with specific policies.

    In the event that the proposed development does not comply with the relevant policies of the development plan, read as a whole, and those policies are up-to-date, the prospects of securing permission for the development look bleak. The only option would appear to be establishing that there are material considerations which provide "objective and substantial" reasons for outweighing the conflict with the Local Plan and the presumption in paragraph 14, read with paragraph 12, of the Framework to refuse planning permission. It is vital that the decision maker in those circumstances acknowledges the "double" negative presumption against development and properly explains how the "pros" outweigh the "cons" which must include a proper analysis of conflict with the policies of the development plan. Such a task looks challenging and it will be crucial for developers to bolster the planning benefits of a scheme to maximise prospects of securing approval.

    Please contact Paul Wootton on paul.wootton@howespercival.com if you would like to discuss further.

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  • 30/06/2017 Navigating the Litigation Maze: Orders and Contracts

    New for 2017, the second in our series of FREE helpful flowcharts for Directors and Owner Managers of businesses provides guidance on how to manage your supplier contracts, supplier disputes and how to minimise litigation risk with suppliers. You will see at a glance the best route to take when you have a dispute with a supplier, helping to identify issues early on and put you on the right track to resolving them.

     

    New for 2017, the second in our series of FREE helpful flowcharts for Directors and Owner Managers of businesses provides guidance on how to manage your supplier contracts, supplier disputes and how to minimise litigation risk with suppliers. You will see at a glance the best route to take when you have a dispute with a supplier, helping to identify issues early on and put you on the right track to resolving them.

    You can download the helpful flowchart here.

    If you would like further information and guidance on supplier contracts and orders, please contact Alison Kirby or Satnam Chayra.

     

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  • 29/06/2017 Informal Grievances - Making Proper Use of Them

    Most employers have a grievance procedure, which sets out how an employee can raise a complaint and how it will be managed.

    Most employers have a grievance procedure, which sets out how an employee can raise a complaint and how it will be managed. Many procedures have a section about raising grievances informally in the first instance. Notwithstanding this, far too many grievances seem to proceed straight down the formal route.

    Sometimes, formalising grievances can lead to polarised positions. There is a strict protocol to follow. People involved will know a grievance has been raised and therefore also often know who and/or what it is about. Also, it is not always easy to deal with matters as quickly as parties would like. Employees often tell you how stressful the formal process is and this can sometimes lead to them falling ill and being absent. Sometimes (but not always) the employee is also left feeling disappointed with the outcome. This can leave employers with the headache of trying to engage with an unhappy employee.

    This article explores the informal grievance stage and considers how employers can make better use of it.

    What are the advantages of dealing with it in an informal way?

    There are no real rules when dealing with a grievance informally. Employers and employees can be creative, dependant on the type of complaint.

    Employees may feel anxious about raising a formal grievance or complaint. They may be concerned about the reaction they might receive or worry how it will affect their job security. The advantage of dealing with complaints informally, is that you can often agree with the employee how best they want you to handle the issue, and this can be done without having to notify lots of people or conduct detailed investigations.

    Another advantage is speed. You will want to have some record of how you are dealing with the process but you have much more flexibility and you can arrange meetings (if needed) much more quickly and without the need for formality.

    What are the drawbacks?

    It is not always appropriate to deal with a grievance informally. The complaint may be so serious and have such wide-reaching implications that dealing with it informally will simply not work.

    You also may need the protection that a formal process will bring. Particularly if you anticipate that potential litigation could ensue, dependant on how the matter is handled.

    Further, an informal process may not lead to the precise issue being dealt with. You may not get to the bottom of what is causing the issue or concern, or indeed, whether there is a wider problem that needs to be dealt with.

    What if the employee wants to go through the formal process?

    You cannot force an employee to go down the informal route. However, that should not stop you at least having a discussion with the employee about whether they would like the matter to be considered informally first.

    Employees may think that dealing with a grievance informally is in some way letting the company off the hook. It is important that you correct this misinterpretation and make it clear that the aim of the informal process is to resolve, as best you can, the employee's complaint, and that it is simply a different approach that may suit them better. You can make it clear that this does not prevent from them later having their grievance dealt with formally.

    You need to be careful that you are not applying undue pressure on the employee to agree to dealing with the matter informally and you must make it clear that they have the choice. However, you should at least attempt to explore the options, so that the employee can make an informed decision. Explaining in full what both processes potentially will look like will help in this decision-making.

    How should an informal process be managed?

    The beauty of dealing with a matter informally is that there are no real set rules. The only two rules we would recommend are:

    Agree with the employee what the informal process will look like; and Make sure that the process is seen to be resolving the complaint in some way. This does not mean that you will always need make a decision in relation to the complaint raised, but merely that you have understood how the employee is looking to resolve the issue, and that the process you design seeks to achieve that.

    You may also wish to involve some or all of the below:

    Some form of meeting/conversation to discuss the complaint - this should happen quickly and be informal; You may want to agree with the employee if there is anything you should be looking into or whether there is a need for any particular fact-finding; Ask the employee for a clear indication of what they want as an outcome, as this may well drive the process; You may want to hold discussions with others. You may want to agree this with the employee and also agree whether he/she wants to be involved; You might want to agree timescales - the idea of an informal process is that it should happen quickly with the minimum of fuss and process; You might want to consider whether you introduce the services of an outside consultant (such as a mediator); You can agree what is documented, if anything, regarding the outcome of the complaint; You might want to agree a period of leave to help with the process, dependant on the complaint made or agree how the employee will continue to work and who needs to be aware of the complaint - ideally you want to try to minimise the people involved, where possible.

    How you manage the process is up to you and the employee to agree. You can set out how you envisage the process operating and try to direct this, but generally the best informal processes are agreed with the employee.

    Dealing with a grievance informally will not always work. Hopefully, however, better use of informal processes will give you the chance to resolve suitable complaints quickly and without drama. Often matters dealt with in this way stand a better chance of achieving a positive outcome, rather than being dragged through a long and drawn-out formalised process where parties are left to think and worry.

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  • 28/06/2017 10 Things to Consider Before taking on Equestrian Premises

    Whether you are looking at starting your first livery yard, looking to make a move to a new yard or are considering letting a stable block to a tenant, there are some important things that you should consider. This article is a guide to those looking to either take a lease of a yard or those looking to generate an income from a yard included within their property by granting a lease to a tenant. 

     

    If you are looking to start a livery yard, finding the right premises is crucial to the success of your business. Curb appeal is a big influence and a yard that is clean, tidy and in good repair will inevitably attract more interest than a rundown yard. However, care should be taken to ensure that you are aware of the obligations and expenses that you will take on in signing yourself up to a lease.

    If you already own a property that has equine facilities or are looking to convert existing buildings into equine facilities in order to generate some additional income, there are also a number of matters that should be considered before granting a lease to a tenant.

    1. Use

    The first thing to consider is whether there is adequate permission for use of the land for equine purposes. The majority of livery yards can be found attached to or located on farms which will be authorised for agricultural use. The only equestrian uses that fall under agricultural use are producing horses for slaughter or turning out horses for grazing only. As soon as the horses receive any other attention such as additional feeding, riding on the land or even rugging the horses, the use falls under equestrian use and an application for change of use should be made to the local planning authority. Failure to do so could result in the local planning authority taking enforcement action which could result in the land being returned to agricultural use.

    2. Stables

    What facilities are available for the stabling of horses? How many boxes are there? If you are taking on the yard, will there be enough stables for all of the horses you intend to keep? Livery that includes a stable will earn you more money but additional structures could mean additional expenses. It is important to establish who will be responsible for maintaining the structure of the stables including the roof. Whether the landlord or tenant is to repair, it is important to ensure that the stables are thoroughly inspected to find out what state of repair they are currently in to give an idea of the cost associated with their upkeep.

    As a tenant, will the stables be adequate for your purposes? Is the flooring suitable, will it be easy to clean and to allow for run off? If so, where does the run off drain to? Is the roof water tight? Is there adequate ventilation? Are they big enough? Stabling for ponies should be approximately 10ftx10ft and for horses 12ftx12ft. Thought should also be given to fire safety and compliance with fire regulations. Do the stables have adequate evacuation points for a quick exit?

    If you are a landlord, you may agree to maintain the stables but what happens if damage is caused by the tenant or one of the horses? It is important to consider how often repairs might be required, after all, you will have no control over the four legged tenants that reside in the stable and some horses make a habit of destroying boxes just for fun! You should also give thought to how the stables will be handed back to you. A schedule of condition can help evidence the condition of the stables at the start of the term.

    3. Drainage, water and electricity supply

    Drainage is an important consideration. Ideally the stables will have a floor with a slight slope to allow for run off. The yard itself should have sufficient gulleys leading to a drain to allow for any water to drain away from the stables and the yard area. Any run off should be directed to an impermeable lagoon or sealed effluent tank that can be removed. A clean water supply is vital. The supply should service the yard and for ease of use supplies should be present in the fields. The water supply pipes should be sufficiently insulated to avoid pipes freezing in adverse weather conditions. An electricity supply will also be required. Lights will be needed in the stables and ideally over the yard. A lit schooling area will be attractable to potential customers as it will allow for evening riding in the winter months. Electric fencing will be necessary and it is important to consider how this will be powered. Will this be powered from the main supply or by a battery? Who will be responsible for paying the cost of the electricity used or the batteries supplied? Again, maintenance of the private drains, water supply pipes and electrical cables should be considered. As a tenant, if the pipes, drains and wires cross land that is not included in the lease of the yard, you must ensure that there are sufficient rights to send and receive services to and from the yard. Thought should also be given to maintenance if this is to be the responsibility of the tenant. If a drainage pipe becomes blocked do you have the right to enter onto the neighbouring land to repair it?   

    4. Fields and Fencing

    It is important to inspect the fields available to ensure that they are suitable for grazing horses. As a tenant, thought should be given as to whether the fields are likely to become water logged in adverse weather conditions meaning that the fields become unusable. Is there adequate space for the amount of horses that you intend to keep with additional space in the event that one of the fields becomes unusable? Who will be responsible for field maintenance and what will this entail? Are there any weeds growing on the fields that will need to be controlled. The Weeds Act 1959 gives the Minister of Agriculture Fisheries and Food the power to serve notice requiring an occupier to remove weeds that are listed under the Act. They include spear thistle, creeping or field thistle, curled doc, broad leaved doc and common ragwort. It is important to decide who will be liable for compliance with this Act. Failure to comply with the Act is an offence which could mean fines or other penalties. If the tenant is to be responsible for compliance, how much will it cost to treat any affected land and how long will it take? Fields that need extensive treatment will not be able to be used and could impact the income from any liveries. There are other laws relating to the control of ragwort that should be considered under The Ragwort Control Act 2004.

    Adequate fencing is essential to ensure that the horses can graze safely and securely. Consideration should be given to who will be responsible for maintenance of the fencing. What sort of fencing is in place at present? Is it just electrical tape or is there more substantial rail and post fencing? Electrical taping will be cheaper to repair but may not be sufficient for containing persistent escape artists. If the fencing is rail and post (or something similar) what condition is it in? Will it need repairing frequently and what are the likely costs?

    5. Security

    Security of the yard is paramount and horror stories of thieves targeting yards are all too common. Are the yard and fields visible from the road? What security measures are in place? Frequently yards are in locations where there is no accommodation on site and so sufficient security measures are vital. If there are none in place at present, who will be responsible for installing these and bearing the cost? Thought should be given to the requirements of your building and contents insurer. 

    6. Pollution

    Potential contamination should be considered. As a working yard, there will need to be adequate facilities in place for the disposal of manure as well as the run off from washing out stables and the yard. The Department for Environment Food and Rural Affairs has published a code of practice for horse owners which sets out guidelines for storage and disposal of waste from yards. The Code advises that any muck heaps must not be near water sources or the stables. Special guidelines are in place for nitrate vulnerable zones and consideration should be given to any further ground water legislation. As a landlord, it is important to ensure that any neighbouring land will not be contaminated and that any future use of the land will not be hindered by contamination. As a tenant, you should give thought as to the arrangements for removal of any manure. Who will do this? Is there adequate space for any farm machinery to access the muck heap to remove it?

    7. Location, facilities and alterations

    As a tenant, once you have established the main aspects of the yard, it is important to consider the location and facilities available. After all, these are the things that are going to attract potential liveries. Is there adequate hacking in the area? Is there sufficient parking for cars, lorries and trailers? Is there space to load and unload horses? Do you have plans to upgrade any of the facilities? If so, you must ensure that the lease between you and the landlord allows this and be mindful of any restrictions on making alterations. As a landlord, consideration should be given to what alterations you are willing to permit. What will happen at the end of the term of the lease? If the tenant is to remove the alterations, are there adequate provisions to ensure that any damage caused to the yard is made good?  

    8. Other considerations

    There are a number of statutes and regulations in place setting out minimum standards for the care of horses and health and safety. The British Horse Society (“BHS”) runs a livery approval scheme. As both a landlord or tenant, being able to confirm that your yard has had BHS approval may make letting or liveries easier as it will give peace of mind that the facilities are up to a good standard. The approval scheme is voluntary and not mandatory. If you chose not to use the scheme, you must ensure that the yard meets the standards required by the Animal Welfare Act 2006. As a tenant, you should also be aware of the provisions of the Horse Passports (England) Regulations 2009. The Regulations require all full livery yard owners to ensure that each and every animal kept on the yard is correctly identified. Insurance should be in place not only for buildings but for contents and public liability. It is important to establish who will be responsible for putting in place insurance. Usually, the landlord insures the buildings and claims to cost back from the tenant.

    9. Rent Review and Break Clauses

    As a landlord, it is important to have a provision to review the rental income of the yard. Rent reviews can be carried out in a number of ways and will ensure that you are gaining a fair rent for the yard. As a tenant, having the option to break the lease may be an important factor, particularly is your business is new. An option to break allows you to bring your lease to an end earlier that the expiry of the term of the lease. It is usual for options to break to be set on specified dates and if a break clause is agreed, care should be taken to make sure that the break date is diarised so that it is not forgotten about.

    10. Livery agreements

    Once the lease between the landlord and tenant has been agreed thought should be given to the form of agreement to be made between the tenant and the liveries. Is there any restriction in the lease on letting the yard out to liveries? As a landlord, do you want to have some control over the liveries that are taken on? If so, a clause should be agreed in the lease setting out your requirements. It may be wise to agree a form of livery agreement that will be used. The agreement should set out the rules of use of the yard as well as any responsibilities that are to be passed on to the livery tenant. Having a clear agreement in a standard form will also help to ensure smooth running of the yard because all parties will be aware of what is included in their livery as well as what is expected of them. The agreement should also contain a provision to review the agreement at an appropriate interval so that any changes can be made at that point. Thought should also be given to any notice periods. Setting a standard notice period for liveries will help ensure that there is time to fill spaces and ensure that loss of rent is minimised.

    If you are considering granting or taking a lease of equestrian property and would like further information, please contact a member of our commercial property team or the author Abi Rudd (abi.rudd@howespercival.com)

     

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    Livery
  • 21/06/2017 Solving Business Problems and Handling Disputes: Developing a Strategy to Take Control

    Business problems and disputes can be a real distraction from the efficient running of a business.  It is important to devise a strategy as soon as possible to manage the situation.  Here are some top tips to help take control and resolve problems and disputes before they get out of hand.

     

    Running a successful business brings many challenges which can include disputes or problems arising with suppliers, customers, competitors, members of staff, other service providers or compliance issues.  It is important that if a dispute or problem arises, however small, it is managed carefully, effectively and commercially to prevent it escalating.  Here are some tips to help manage the dispute:

     1. Identify what the dispute or problem is really about. 

    Often issues arise but there is an underlying factor that has caused the problem or dispute to be raised.  It is important to consider what has caused the problem to know how to address it.

     2. What is the value of the dispute?

    This is not just the value of the claim and any costs for external fees. Think about the management time; stress; distraction from the running of the business; risks such as damage to reputation and impact on future business relationships; all of which may dictate how the dispute or problem is handled. Are you insured for some of these costs?

     3. Think Objectively and Commercially. Not Subjectively and Emotionally. 

    Parties to disputes see matters from their own point of view and recall the facts to justify their position. Take an objective view and think commercially about the problem, rather than responding emotionally which is often the instinctive reaction.

     4. Assess the strength of your position

    What is the legal position? Is this dependant on the facts? Do you have evidence? Do you have terms and conditions or policies? Have you followed them? Do you need an independent opinion on the law and merits of your position?

    5. What outcome do you want?

    Identify at an early stage what outcomes you want and also outcomes you would be willing to accept.  Are you willing to compromise on anything? Do your outcomes reflect the risk to both parties and the strength of your position?

     6. Carrot and Stick!

    Make your desired outcomes attractive to the other party.  Disputes rarely resolve without some compromise.  There needs to be an incentive to settle. This maybe an offer as an alternative to a stronger course of action e.g court proceedings.

     7. Devise a strategy to achieve your outcomes. 

    Identifying a plan of action and how you intend to deal with the dispute is essential to enable you to take control of the matter and prevent the dispute escalating in a way you had not envisaged.

     8. Evidence – Search and Preserve

    This is vital to the strength of your case. Knowing what evidence you have and that it is preserved is an essential part of the strategy. You can then control when to disclose the crucial evidence.

    9. Think before you communicate

    ‘What to say’ and ‘What not to say’ is crucial. Saying the wrong thing can inflame the problem or weaken your position. Think about what should be ‘without prejudice’ and what should be ‘open’ correspondence. Do you need insurer’s approval?

     10. Get Early Advice! 

    Consult a specialist in handling disputes who will:

    • Know the law and relevant procedures;
    • Have experience of dealing with similar problems;
    • Give an objective commercial view;
    • Help with valuing the dispute and the timeframe and costs to resolve it.
    • Probably be able to add value to your claim;
    • Advise on the risks;
    • Help identify realistic outcomes to reflect the risks;
    • Help devise a strategy to take control;
    • Know what evidence is needed and where to look for it;
    • Know when to use the carrot and the stick;
    • Get that early communication right. Not just what to say but how to say it;
    • Share the problem to release you to focus on your business;
    • Probably cost less than you think for an initial view;
    • Provide clear advice on costs to ensure they are proportionate to the problem.

    Howes Percival have vast experience of handling commercial disputes and solving business problems on a daily basis.  In our experience being pro-active and sharing these problems is the best way to ensure disputes are resolved quickly and at low cost, so you can focus on the running of your business.

    We will not charge for initial telephone enquiries to listen to your problem and identify if we can help. If you want to share a problem and get a second opinion. Please contact Gordon Simpson on 01603 580070 or gordon.simpson@howespercival.com for an initial discussion without obligation or charge.

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  • 14/06/2017 Pubs and planning law: are you up to date?

    Following the enactment of provisions in the Neighbourhood Planning Act 2017 which look to protect pubs, Planning and Licensing law specialist, Jamie Childs, looks at the latest changes in the planning laws relating to the development and change of use of pubs. 

     

    Following the enactment of provisions in the Neighbourhood Planning Act 2017 which look to protect pubs, Planning and Licensing law specialist, Jamie Childs, looks at the latest changes in the planning laws relating to the development and change of use of pubs.

    Permitted development rights

    What has changed?

    The Neighbourhood Planning Act 2017 was given Royal Assent on 27 April 2017 and, amongst other things, legislated for changes to permitted development rights (“PDR”) for pubs.

    The relevant provisions of the Neighbourhood Planning Act 2017 led to the amendment of PDR as follows:

    - Removing the right to demolish buildings in use (or last used) for a purpose within Class A4 (drinking establishments) including drinking establishments with expanded food provision (see further below).

    - Removing drinking establishments from PDR under Schedule 2 Part 3 Class A of the Order which previously allowed the change of use of drinking establishments to Class A1 (shops) or Class A2 (financial and professional services) subject to certain limitations, conditions and restrictions.

    - Establishing a new PDR under Schedule 2 Part 3 Class AA for the change of use of a building and land within its curtilage as follows:

    • From Class A4 (drinking establishments) to a use as a drinking establishment with expanded food provision (within use Class A4 and Class A3 (restaurants and cafes); and
    • From a use as a drinking establishment with expanded food provision back to a use solely under Class A4.
    • Removing drinking establishments from PDR under Schedule 2 Part 3 Class B which previously allowed the change of use of drinking establishments to a use under Class A3 (restaurants and cafes).
    • Amending the PDR for a change of use to a state-funded school for 2 academic years within Schedule 2 Part 4 Class C of the Order so that this no longer applies to buildings within Class A4 (drinking establishments) or drinking establishments with expanded food provision.
    • Revising the PDR for a change of use to a temporary flexible use within Classes A1, A3 and B1 under Schedule 2 Part 4 Class D of the Order so that this no longer applies to buildings within Class A4 (drinking establishments) or drinking establishments with expanded food provision.

    What do these changes mean in practice?

    The Neighbourhood Planning Act 2017 was the subject of a great deal of debate prior to receiving Royal Assent which was also just before Parliament was dissolved on 3 May 2017. Frankly, it does not appear that the finer details and implications of the amendments set out above were thoroughly considered and any person considering a change of use or works to a pub, whether a landlord, publican, property investor or developer should carefully consider the effect of these changes and whether they really have the desired effect of protecting pubs at all. In summary, the PDR are much more limited and planning permission is likely to be required more frequently when changing the use or redeveloping pubs, so clear advice must always be sought.

    In respect of the new rights allowing expanded food provisions, careful attention should also be given to whether a particular pub actually does come within Class A4 (drinking establishments) and what a “change of use” to a “drinking establishment with expanded food provision” within both Class A4 and Class A3 (restaurants and cafes) actually means given that Class A3 (since April 2005) covers “Use for the sale of food and drink for consumption on the premises”.

    For instance, if it may be argued that a particular pub falls within Class A3 rather than Class A4 then the Order shall still allow (subject to limitations, conditions and restrictions) the change of use of such premises to Class A1 or Class A2 use. This is only one example of potential circumstances where these so called pub protection measures shall offer no such protection.

    There are also detailed transitional provisions for those who have already begun the notification and prior approval procedures (as appropriate) applicable to those PDR which have been removed before 23 May 2017 and for those areas subject to an Article 4 direction, which has the effect of removing PDRs.

    Assuming one has concluded that a pub in question does fall within Class A4 (including drinking establishments with expanded food provision), then the effect of the removal of the demolition PDR is clear cut. Planning permission shall be needed for demolition of such a pub and developers and owners of pubs should bear this in mind when proposing to re-develop a pub, particularly given the potential on-going liability for business rates whilst the pub in question remains in existence.

    Pub owners and developers seeking to rely on PDR will also need to ensure that their Local Planning Authority (“LPA”) has not limited the application of such rights for the particular building or the area through an “Article 4” Direction, or there is an express planning consent that may restrict the proposed use.

    Assets of community value (ACV)

    What are ACVs and what does ACV status mean?

    During the debate leading to the PDR changes discussed above it was stated in Parliament that there are thousands of pubs listed as assets of community value. ACVs are not a new concept, having been around since 2012. However, recently we have seen a significant increase in nominations to list land or buildings as an ACV, particularly given the Campaign for Real Ale’s drive to achieve the listing of 3,000 pubs as ACVs.

    The ACV regime does not just affect pubs but can also lead to the listing of community centres, gyms, areas of open (and potentially developable) land and any other land or buildings meeting the relevant legal tests.

    In summary, the ACV regime allows certain bodies (parish councils, community organisations etc.) to nominate land or buildings to be registered by a local authority as an ACV. If the local authority concerned decides to add the asset to their register of ACVs it shall remain on its list for five years (unless sold). If an ACV is put up for sale there is then a six week moratorium period where a community group may express an interest in bidding for the asset. If an interest is expressed a six month moratorium period shall then begin from when the asset is put up for sale to allow a community group to compile a bid.

    It should be made clear that this does not mean a community group has a “right” to buy the ACV during the six month moratorium period but that it has the opportunity to bid, with no obligation on the vendor of the ACV to accept such a bid. However, this does mean that no sale to a bidder who is not a community group may be concluded during the six month period, although negotiations may be progressed.

    Under the ACV regime an owner of an ACV may claim compensation from the local authority for losses and expenses which would not have been incurred if the premises had not been listed.

    Listing of a pub used to have implications for the use of PDR but this has now been negated by the PDR changes discussed above.

    However, the ACV regime remains a real thorn in the side of owners of ACVs seeking to dispose of them and developers looking to purchase land or buildings registered as an ACV as a result of the six month moratorium period delaying sales and affecting funding. In addition, in certain circumstances it shall be appropriate to treat an ACV listing as a material consideration in the determination of a planning application which could affect development proposals.

    What can be done to avoid ACV status?

    Following a nomination of land or buildings as an ACV the local authority has eight weeks to decide whether to nominate an asset if they consider it meets the definition set out in section 88 of the Localism Act 2011.

    If the owners of the land or building in question wish to object to a listing of their asset as an ACV it is critical that they submit robust representations during this eight week period.

    Whilst there are mechanisms for the owner to call for an internal review of a local authority’s decision to list an asset as an ACV after the listing decision and also to appeal to a Tribunal from this review, these routes are time consuming and costly, although necessary in certain circumstances.

    Howes Percival’s Planning Team have an excellent record of successfully objecting to nominations for ACVs on behalf of landowners and developers so do not hesitate to contact us for assistance should you receive notification that your land or building has been nominated as an ACV.

    Should you wish to discuss the implications of the latest changes to planning law affecting pubs in more detail please do not hesitate to contact a member of our specialist planning team or the author and Planning and Licensing Law specialist, Jamie Childs (jamie.childs@howespercival.com).



     

     

     

     

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