The following policy agreements will be of interest to the property industry:

• Home Information Packs (HIPs) are to be suspended, but Energy Performance Certificates will be retained. Legislation will be required to completely abolish HIPs;
• Decision-making powers on housing and planning will be given to local councils, including new powers to stop ‘garden grabbing’ by developers;
• Home energy improvements will be paid for through savings made from lower energy bills;
• Reform the planning system to give local people the ability to determine the shape of the places in which they live. This will be based on the principles set out in the Conservative Party publication Open Source Planning;
• Abolish the Infrastructure Planning Commission and replace it with a democratically accountable system that provides a fast-track process for major infrastructure projects; 
• Plans to establish a high-speed rail network will continue, but plans for a third runway at Heathrow will be cancelled. No additional runways will be built at Gatwick and Stansted airports; 
• Maintain the Green Belt, Sites of Special Scientific Interest (SSSIs) and other environmental protections, and create a new designation to protect green areas of particular importance to local communities; 
• Introduce new measures to bring empty homes into use;
• Promote shared-ownership schemes and help social tenants and others to own or part-own their home; 
• Promote ‘Home on the Farm’ schemes that encourage farmers to convert their buildings into affordable housing; 
• Create new trusts that will make it simpler for communities to provide homes for local people; 
• Require continuous improvements to the energy efficiency of new housing; 
• Provide incentives for local authorities to deliver sustainable development, including for new homes and businesses; 
• Review the effectiveness of the raising of the stamp duty threshold for first-time buyers; and
• Bring forward the national planning statement so that it can be ratified by Parliament. The statement will enable new nuclear construction. The Liberal Democrats, who are opposed to any new nuclear construction, will abstain from voting on the issue.

These policies are part of the Government’s legislative programme for the next five years, and further detail about how they will be implemented will be published in due course.

The new Approved Documents will:

•           Introduce new requirements and guidance for the installation and commissioning of fixed mechanical ventilation systems (Part F);

•           Ensure that combustion appliances function safely in airtight homes (Part J);

•           Improve the energy efficiency of new homes by 25 per cent (Part L).

The new Approved Documents, which come into effect on 1 October 2010, have essentially been introduced to improve energy efficiency in buildings (and, thus, help achieve the Government’s environmental targets for zero-carbon buildings.)

This latest case dealt with:

1)      the effect of notices warning that there is “No Public Right of Way”

2)      whether registration of a new green depends on proving that users come from a specific locality

3)      whether the residents of other localities can gain any rights after a new green is registered

 The Facts:

Warneford Meadow in Oxford had been used by local people for recreational purposes for more than 20 years. There were 2 well defined paths crossing the meadow. In 1989 the landowner erected 2 signs reading “No Public Right of Way” and sited these so that they appeared to refer to the paths. In 2006 a resident applied to register Warneford Meadow as a new green after the landowner decided to develop the land. The land was subsequently registered as a green by the local council. The landowner’s application for Judicial Review of the decision was dismissed by the High Court.

The High Court’s Decision:

The High Court reaffirmed the decision in the Redcar case and the requirements to register land as a new green.

In dealing with the 3 issues mentioned above the High Court decided:

1. The landowner was aware that locals used the meadow for recreation and that there were well used paths. The landowner was unaware that rights could be acquired under the commons legislation.  The landowner erected the 2 signs in order to prevent the public acquiring rights over the informal paths. The landowner argued that the effect of the signs was to make contentious any recreational use of the meadow and not just the paths. The High Court held that the objective effect of the signs only made contentious the use of the paths and not the meadow as a whole.
2. The meadow was registered as a new green on the basis that a significant number of users came from a particular neighbourhood, although users did not predominately come from that neighbourhood. In this case the relevant legislation was the Commons Registration Act 1965 as amended by The Countryside and Rights of Way Act 2000. The amended legislation made it easier to register new greens by requiring use by “a significant number of the inhabitants of any locality or of any neighbourhood within a locality”. It had previously been decided that prior to amendment the 1965 Act had required the users to come predominantly from the locality. The landowner argued that the “predominance” test still applied after the legislation was amended. The High Court disagreed. All that is required is that use was by a significant number of the inhabitants of any locality.
3. Counsel for both parties agreed that registration of land as a new green confers recreational rights only upon the inhabitants of a specific locality. Counsel seemed to rely on the Regulations promulgated in 2008 which provide for the model entry in the register to specify the locality. The Judge accepted this as correct in law.

 In Summary:

1. Landowners are aware of the risk that rights may be acquired by prescription but are still blissfully unaware of the rights that may be acquired under the legislation relating to new greens. Landowners and developers should make sure that any signs that are erected extend to the recreational use of the land as a whole and not just to footpaths.

2. The decision carries forward to the current legislation in relation to new greens. The “predominance” test does not apply and as such it is easier to register new greens.

3. It is difficult to read Section 15 of the Commons Act 2006 as allowing further localities to be registered as having rights. It seems that where a green is used by a significant number of inhabitants of several localities, registration of a new green  in favour of one locality will make it impossible for the inhabitants of other localities to establish legal rights of recreation over the same green. In principle this does not seem right.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘It’s rare for courts to rule that frustration occurs, because they like to ensure contracts are honoured where possible. This case doesn’t create new law, but confirms that a mere adverse change in the economic climate is not a ground to claim frustration and get out of a bad bargain. If the parties want to avoid a contract in those circumstances, it’s still open to them to draft an appropriate get-out in the contract itself to cover those circumstances.’

If one spouse or partner has a higher income than the other, this presents an opportunity for tax planning by diverting more of that rental income to the spouse with a lower rate of tax. This balancing exercise can give rise to significant savings opportunities with careful tax planning. This will be of particular importance come 6 April with the introduction of the 50% rate of tax, but is also relevant for those whose income is taxed at 40%.

If you would like some advice on how best to achieve this, please contact Shimon Shaw or James Odds.

In this case, an order for possession of a property had been made in the absence of the defendant and the court had to decide whether a possession proceeding hearing is, by its nature, a trial or a hearing. Depending on the answer to this question, it would determine on what basis the defendant could then apply for relief from forfeiture.

As the Judge pointed out, the usual sort of case, in a busy possession list with perhaps 5 to 10 minutes allowed for each case, will be an undefended case where the defendant, if he attends, has nothing to say. The Judge will look at all the evidence from the claimant – probably all the evidence there is – and make a determination and decision:  he will satisfy himself that the case is made out on the claimant’s evidence and satisfy himself that any necessary statutory requirements are fulfilled; he will make a possession order (suspended or not as the case may be).

Such a process of determination and decision cannot sensibly be called a trial.  Rather it is more of a summary procedure in the sense of a procedure carried out rapidly with the omission of most of the steps which in an ordinary case lead to trial.

Forcelux Limited v Mr Martyn Ewan Binnie [2009] EWCA Civ 854

The court held that when the second defendant transferred her property to the first defendant, she was suffering from a disability due to her psychiatric condition. A contract made by a person who lacks capacity makes it voidable, but not void. Even though she was suffering from a disability, the onus was on her to establish that the other party knew of the incapacity at the time, or knew of such facts and circumstances that he must taken to have known of the incapacity.

Although the second defendant was unable to recollect the facts surrounding the property transaction, the court found that her incapacity should have been apparent and therefore the conveyance of the second defendant’s property was a voidable transaction giving rise to an equity in her favour.

The next major issue was whether the second defendant was in actual occupation of the property when the legal charge was registered. If she was, then the claimant’s charge would take subject to her equity in accordance with the Land Registration Act 2002. Even though she was living in a care home because she was suffering from mental health issues and was prevented from living in her home by the Mental Health Act, her furniture remained there, arrangements had been made by those responsible for her finances to pay the regular bills, she intended to return there and she still considered it her home. The court decided that she still occupied the house even though she was resident elsewhere, for the time being. As such, her equity had priority over the claimant’s charge.

Accordingly, where a party sells a property under a disability, that agreement will be voidable, giving rise to an equity. That equity will be binding on a bank if that party is held to have been in actual occupation when the charge is registered, even if that party is not in residence as long as they intend to return to their home and continue to be responsible for bills, etc, relating to the property.

Link Lending Limited v Noreen Hussein and Susan Bustard by her litigation friend 24 September 2009