GLOSSARY
Abatement definition
What does Abatement mean?
The receipt by legatees of part of or none of their entitlement due to insufficient assets to discharge the entitlements in full.
Where the assets are sufficient to discharge the debts and specific legacies but not the general legacies, the latter are subject to abatement unless the will clearly indicates otherwise.
View the related practice notes about Abatement
Definition of a personal representative
Section 55(1)(xi) of the Administration of Estates Act 1925 defines ‘personal representative’ as:‘the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the court, and “executor” includes a person deemed to be appointed executor as respects settled land’An executor is a person appointed by a valid Will or codicil to administer the testator’s property and carry out the provisions of the Will.If the deceased left a Will but there is no executor able or willing to act then an administrator may take a grant of letters of administration with Will annexed. An administrator is a person appointed by the court to administer the property of a deceased person where they were not appointed in the deceased’s Will. The order of priority to apply for letters of administration (with Will annexed or otherwise) is set out in the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987).The term personal representatives (PRs) includes both executors and administrators.An executor’s appointment may be limited to particular property as specified by their appointment in the Will, eg literary works.An executor de son tort is a
Payment of legacies
Identification of beneficial interestsThe personal representatives (PRs) of an estate must identify:•the beneficiary or beneficiaries entitled to each particular legacy•what each beneficiary is entitled to receive, and•the time at which each legacy should be paidExecutor's yearPRs have at least one year from the date of death before beneficiaries can call on them to distribute any part of the estate. Even after one year, the PRs may not yet be in a position to distribute the estate.Deciding to distributeBefore deciding to commence distribution of legacies, PRs must consider if there is reason to delay distribution due to other aspects of the estate administration being incomplete or potential issues arising, such as:•outstanding tax liabilities•outstanding debts•unknown beneficiaries•rectification action•family provision claims, or•variation or disclaimerBeneficiariesDuty to distributePRs must distribute to the persons entitled under the deceased's Will or under the intestacy rules. Before distributing, they must satisfy themselves as to the correct identity of the beneficiaries. See Practice Note: Will interpretation—specific beneficiary identification issues.Class descriptionsWhen a beneficiary under the Will is identified by reference to a general class description, the PRs must ascertain all those within the class description at the relevant time. See Practice Note: Will interpretation—when are beneficiaries ascertained?Class-closingThese are rules of construction aimed at closing entry to the class as soon
Banking and finance—environmental due diligence and practical ways for lenders to mitigate environmental risks
Banking and finance—environmental due diligence and practical ways for lenders to mitigate environmental risks Why are lenders concerned about environmental risk? The ever growing number of environmental laws has affected the way that lenders perceive environmental risk and has generally given rise to a more stringent approach. Lenders are concerned about environmental risk for a number of reasons: • it can reduce the credit-worthiness of a borrower or guarantor • it can divert the cashflows on a project finance • it can negatively affect the value of the lender’s security • it can create direct liability for the lender (civil, criminal, requirements to remediate or comply with enforcement notices), and • there can also be reputational risks in lending to businesses that are seen as being 'dirty', particularly given the trend towards environmental, social and governance (ESG) factors where a range of mechanisms and principles are fomenting responsible business practices These risks could come about in situations where a borrower or other obligor breaches environmental laws and is faced with sanctions that could include: • fines and/or imprisonment • damages under civil actions • injunctions • clean-up works • costs involved in upgrading operations in compliance with required standards, and • business disruption, closure or restriction For lenders to properly assess the ability of a borrower to pay back a loan or the value of any guarantee or third party security, they need to, among many other matters, assess
Landfill Directive—snapshot
Landfill Directive—snapshot Title data-ln-csis="428170" data-ln-lnis="61JH-9NX3-GXFD-82G9-00000-00">Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste OJ L 182 of 16.07.1999 Entry into Force 16 July 1999 Deadline for Transposition 16 July 2001 Amendments See: EUR-Lex linked documents England and Wales Implementation Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154 Subject landfill, environmental permitting Brexit 11 pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes began to take effect across the UK’s legal regime. Waste (Miscellaneous Amendments) (EU Exit) (No 2) Regulations 2019 The Waste (Miscellaneous Amendments) (EU Exit) (No 2) Regulations 2019, SI 2019/188, introduce amendments to multiple pieces of EU-derived domestic legislation to correct deficiencies in this legislation arising from the UK’s withdrawal from the EU. This includes amendments to the regulations that refer to the Landfill Directive. For more details, see: Domestic implementation section below. Objectives Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (the Landfill Directive) aims to prevent or reduce as far as possible negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air, by providing stringent operational and technical requirements on the
Air pollution—air quality targets and local air quality management
Air pollution—air quality targets and local air quality management Air quality controls in England and Wales are interrelated, and stem from European legislation and international conventions, as well as from a number of national initiatives. For an overview of air pollution controls, see: data-ln-csis="393763" data-ln-lnis="55KB-D851-F18C-102J-00000-00">Air pollution—overview, which also provides links to Practice Notes dealing with many aspects of air quality. Air quality is a devolved matter, and although the UK government leads on international legislation implementation, the domestic air quality controls can vary across the regions. This note considers any variation only in relation to England and Wales. Brexit 11 pm (GMT) on 31 December 2020 marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements came to an end and significant changes began to take effect across the UK’s legal regime. EU Exit Regulations Air Quality (Amendment of Domestic Regulations) (EU Exit) Regulations 2019, SI 2019/74 and Air Quality Standards (Wales) (Amendment) (EU Exit) Regulations 2019, SI 2019/390 are made to address the functioning of subordinate legislation concerning air pollution, including and relevant to this content: • Air Quality Standards (Wales) Regulations 2010, SI 2010/1433 • Air Quality Standards Regulations 2010, SI 2010/1001 The majority of amendments made are changes
Environmental prosecution and enforcement policy
Environmental prosecution and enforcement policy Environmental enforcement principles Three principles form the basis of environmental protection in the UK: • the preventative principle—promotes the prevention of environmental harm as opposed to remedying harm that has been caused and is often linked to the precautionary principle • the precautionary principle—being ‘safe rather than sorry’ and where reasonable evidence exists, requires action to avoid potential negative impacts to be taken, instead of waiting for absolute proof, and • the polluter pays principle—that anybody responsible for producing pollution should also be responsible for paying for the damage done to the environment as a result of that pollution The Environment Bill requires the preparation of a statutory policy statement on five internationally recognised environmental principles. On 10 March 2021, the Department for Environment, Food & Rural Affairs (Defra) launched a consultation on a draft policy statement on environmental principles, which closed on 2 June 2021 (see LNB News 10/03/2021 66). This policy statement will see five environmental principles committed to by the UK government to guide its work and ensure considerations for the environment remain central to policy making. In addition to the above three principles will be: • the integration principle—policy-makers should look for opportunities to embed environmental protection in other fields of policy that have impacts on the environment • the rectification at source principle—if damage to the environment cannot be prevented it should be
Price, payment terms and interest
Price, payment terms and interest This Practice Note summarises the main issues arising in relation to price, payment terms and interest provisions in business to business contracts. It covers the distinction between deposits and part payments when making payments in advance, the time of payment, whether time is of the essence, methods of payment and whether to permit set-off. It also considers the consequences of late payments including interest, suspension and termination. Different rules apply to business to consumer contracts. These are not dealt with in this Practice Note. If you require further information, see Practice Notes: Consumer Rights Act 2015—summary and Consumer Rights Act 2015—unfair terms. Price Pricing for goods or services supplied under an agreement may be structured in a number of different ways (for example, services may be priced on a time and materials or a fixed price basis, the price of goods may also be fixed or adjusted subject to the volume ordered in a given time frame) and care should be taken to ensure that the parties' intentions are clearly set out in the contract. What price? In order to avoid misunderstandings or disputes, clarity on the price of the goods or services is essential. Matters such as denoting the correct denomination can affect the amount actually paid, especially in a market of uncertain exchange rates and rising costs. If
UK CCUS—an overview
UK CCUS—an overview This Practice Note examines Carbon Capture Usage and Storage (CCUS) from the UK perspective. While currently there are no CCUS plans on the Irish island, the approach considered in this note is expected to be the same in Northern Ireland). This Practice Note considers: • what is CCUS and the key types of technologies it encompasses • the development of CCUS clusters in the UK • government policy and legislative developments aimed at increasing the deployment of CCUS, including the development of business models for establishing an incentive mechanism for CCUS projects and the Carbon Capture and Storage Infrastructure Fund • key drivers, obstacles and risks for CCUS uptake • policy developments in relation to repurposing existing oil and gas assets for CCUS projects, and • existing national and international legislative framework surrounding CCUS projects For more information specifically on the: • planning framework applicable to CCUS projects, see Practice Note: Carbon capture usage and storage—planning and policy • permitting requirements for CCUS projects, see Practice Note: Carbon capture usage and storage—permitting requirements What is CCUS? CCUS is the collective name for a set of technologies which deal with the capture of carbon dioxide (CO2), generated as a by-product of another process (such as electricity generation from fossil fuel sources, industrial processes and others, and the transportation of such CO2 via pipeline, ship or road tanker to a
Failure of gifts—ademption
Failure of gifts—ademption When applying the doctrines of ademption and abatement, a distinction is drawn between specific, general and demonstrative legacies. Classification of legacies The different types of legacies were explained in Walford v Walford as follows: 'Legacies are of three kinds: there is the specific legacy which is a specific res secured under the testator's Will on his death; and, of course it does not abate if the rest of the assets are insufficient for the payment of general legacies; but it has this disadvantage, that if the particular res which is the subject of the specific legacy disappears in the meantime then the legatee gets nothing. The class of legacy at the other extreme is a general legacy which comes out of the residence and which abates if the residue is insufficient, but which prima facie, under a rule of administration of the court, carries interest as from a year after the testator's death. There is an intermediate class of legacy, namely a demonstrative legacy, which is simply a general legacy, with the quality attached to it that it is directed to be paid out of a specific fund, and, if there is a shortage of assets and that fund remains, is paid out of that fund without abating. On the other hand if the fund does disappear, then it has this advantage over a specific
Industrial Emissions Directive 2010/75/EU—snapshot
Industrial Emissions Directive 2010/75/EU—snapshot Title Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (recast) (Industrial Emissions Directive or ‘IED’) Entry into force 6 January 2011 Deadline for transposition 6 January 2013Implementation from 6 January 2013 in respect of any installation new after that dateImplementation by 6 January 2014 in respect of installations already in existence before 6 January 2013 (except large combustion plants)Implementation by 6 January 2015 in respect of industrial activities not subject to the Integrated Pollution Prevention and Control Directive 2008/1/EC (IPPC Directive)Implementation by 1 January 2016 in respect of large combustion plants already in existence before 6 January 2013 Amended by Corrigendum to Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) Repeals The Large Combustion Plant Directive 2001/80/EC (LCP Directive)—repealed 1 January 2016The IPPC Directive 2008/1/EC—repealed 7 January 2014The Waste Incineration Directive 2000/76/EC (WID)—repealed 7 January 2014The Volatile Organic Compound Directive 1999/13/EC (VOCs Directive)—repealed 7 January 2014The Titanium Dioxide directives on—disposal (Directive 78/176/EEC), monitoring and surveillance (Directive 82/883/EEC), programmes for the reduction of pollution (Directive 92/112/EEC)—repealed 7 January 2014 England and Wales implementation Environmental Permitting (England and Wales) Regulations 2010, SI 2010/675, which were consolidated and
View the related precedents about Abatement
Abatement notice for a statutory nuisance made under the section 80 of the Environmental Protection Act 1990
Abatement notice for a statutory nuisance made under the section 80 of the Environmental Protection Act 1990 [name] [District] [Borough] [City] Council ABATEMENT NOTICE made under section 80 of the Environmental Protection Act 1990 To: [name] of [address] Take notice that 1 The [name] [District] [Borough] [City] Council (the Council) is satisfied that a statutory nuisance [exists OR is likely to [occur OR recur] ] under section 79(1) [specify which subsection] of the Environmental Protection Act 1990 (EPA 1990) from [the premises at] [specify the address of the source of the nuisance] arising from [describe the matters which are causing the nuisance]. 2 This abatement notice is served on you because you are [the person responsible for the statutory nuisance OR [the owner OR the occupier of] the premises]. What you are required to do 3 [You are required to abate the nuisance [forthwith OR within [specify hours, days, weeks] from the service of this Notice] [and] ] [You are required to restrict the [occurrence OR recurrence] of the nuisance.] [The [occurrence OR recurrence] of the nuisance is prohibited.] 4 [For [that purpose OR those purposes] you are required to [execute the following works OR take the following steps] within [specify the
Notice of appeal pursuant to section 80(3) of the Environmental Protection Act 1990 against an abatement notice for a statutory nuisance
Notice of appeal pursuant to section 80(3) of the Environmental Protection Act 1990 against an abatement notice for a statutory nuisance [name, address and telephone number] To: The Clerk to the Justices, [name] Magistrates’ Court [date] Notice of Appeal against an abatement notice, pursuant to section 80(3) of the Environmental Protection Act 1990 1 [I OR We] of [address] give you notice under section 80(3) of the Environmental Protection Act 1990 that [I am OR we are] appealing against the statutory nuisance abatement notice served on [me OR us] on [date] by the [name of local authority] (the Council). 2 The abatement notice was served in respect of [premises known as [address, etc] OR [give details of the vehicle, machinery or equipment concerned]]. The notice required the [abatement OR prohibited the occurrence OR recurrence] of the alleged statutory nuisance pursuant to section 80 of the Environmental Protection Act 1990. 3 The grounds of [my OR our] appeal are as follows: 3.1 [the notice is not justified by the terms of
Environmental consultant form of collateral warranty (with optional step—in clauses)
Environmental consultant form of collateral warranty (with optional step—in clauses) Date [______________________________20[insert]] Parties 1 [Consultant] (incorporated and registered in England and Wales under company registration number [insert number]), the registered office of which is at [insert address] (the "Consultant"); and 2 [Funder, purchaser, tenant] (incorporated and registered in England and Wales under company registration number [insert number]), the registered office of which is at [insert address] (the "Beneficiary", which term shall include successors in title and permitted assigns)[; and/.] 3 [[Client] (incorporated and registered in England and Wales under company registration number [insert number]), the registered office of which is at [insert address]) (the "Client").] Recitals (A) [[insert name of Client] whose registered office is at [insert address] (‘the Client’) OR The Client] has appointed the Consultant under the Appointment to perform the Services. (B) By [a OR an] [Funding OR [insert other] Agreement [for [Lease OR Sale] ] ] [the Client agreed to grant and the Beneficiary agreed to take a lease of [part of] the Property OR the Client agreed to sell and the Beneficiary agreed to buy [part of] the Property OR the Beneficiary agreed to provide finance for the Property]. (C) The Consultant has agreed to execute this Deed in favour of the Beneficiary NOW in consideration of the payment of £1 (receipt of which is hereby acknowledged by the Consultant)this Deed witnesses as follows: 1 Definitions The following
Step-in rights clause
Step-in rights clause 1 1.1 The Developer agrees that it shall not without first giving the Funder not less than [28] days written notice exercise any right the Developer may have to: 1.1.1 terminate this agreement; or 1.1.2 treat this agreement as having been repudiated by the Owner; or 1.1.3 discontinue the performance of any obligations to be performed by the Developer under this agreement. 1.2 The Developer's right to terminate this agreement or treat this agreement as being repudiated or discontinue performance of any obligations to be performed by the Developer under this agreement shall cease if within the period of notice described in clause 1.1 (subject to clause 1.3) the Funder shall give written notice to the Developer requiring the Developer not to terminate this agreement or treat this agreement as having been repudiated by the Owner or discontinue the performance of any obligations to be performed by the Developer under this agreement. 1.3 It shall
Underlease of whole premises demised by headlease—part of office building—illustrative mark-up
Underlease of whole premises demised by headlease—part of office building—illustrative mark-up Precedent underlease of part-offices—whole of premises demised by Head Lease This Precedent underlease is presented as a ‘tracked changes’ PDF showing the changes made to convert a head lease to an underlease, and can be downloaded, saved or printed from this link: . NOTE: This illustrative mark-up is based upon Lease of part—offices [Archived], a previous version of our Precedent Lease of part (office). However, the purpose of this document is to demonstrate how a practitioner should approach the task of drafting an underlease and the principles remain the same. Drafting notes to Precedent Underlease of part-offices—whole of premises demised by Head Lease Caution This underlease assumes that the Head Lease is a lease of office premises forming part of a building and that the premises demised by the underlease are the whole of the premises demised by the Head Lease. It therefore incorporates service charge and insurance rent on the same terms as the Head Lease. It is presented as a ‘tracked changes’ document showing the changes made to the Head Lease to convert it to an underlease. The terms of any underlease will always depend on the precise terms and requirements of the relevant Head Lease. Therefore, this Precedent is for illustrative purposes only and is designed to be used as a prompt
Asset sale agreement—non-going concern sale
Asset sale agreement—non-going concern sale DRAFTING FOR BREXIT: For the latest information on the impact of Brexit on the drafting, negotiation and enforceability of this Precedent, see Practice Notes: Brexit—IP completion day impact on private M&A sale and purchase agreements and Brexit—drafting boilerplate clauses [Archived]. This Precedent has been updated to reflect the changes required from IP completion day (defined as 11pm on 31 December 2020). Where different drafting is required prior to that date, this is made clear in the Drafting Notes. This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of company in administration/liquidation] (in [administration OR liquidation]) a company incorporated in [England and Wales OR [insert country of incorporation]] with registered number [insert company number] the registered office of which is at [insert address] (the Seller), acting by its [joint] [Office-holder OR Office-holders]; 2 [Insert name of office-holder(s)] of [insert name of firm] the registered office of which is at [insert address of firm](the [ Office-holder OR Office-holders ]); 3 [insert name of purchasing corporate entity] a company incorporated in [England and Wales OR [insert country of incorporation]] with registered number [insert company number] the registered office of which is at [insert address] (the Buyer); and each of the Seller [the Office-holder OR each Office-holder] and the Buyer being a Party and together the Seller [the Office-holder
Agreement for lease — developer landlord to carry out major works
Agreement for lease — developer landlord to carry out major works date [date] Parties 1 [name of Landlord] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Landlord) 2 [name of Tenant] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Tenant) 3 [[name of Guarantor] [of OR incorporated in England and Wales with company registration number [number] whose registered office is at] [address] [and whose address for service in England and Wales is [address]] (Guarantor)] 1 Definitions In this Agreement, the following definitions apply: [Acceptance Tests • the tests usually carried out when commissioning items of mechanical and electrical plant, such as those to be incorporated in the Landlord’s Works, with a view to establishing that they meet their intended design and performance specifications;] [Access Certificate • the certificate issued by the Contract Administrator that the Landlord’s Works satisfy the Access Condition;] [Access Certificate Pre-conditions • are: (a) [the Landlord’s Works are wind and watertight;] (b) [the concrete floor has dried and aired;] (c) [incoming electricity, water and sewerage services are installed [at [and terminate within] the [Building OR building[s] on the Property] ], subject only to the Tenant arranging connection;] (d) [drainage connections have been completed in accordance
Power purchase agreement (PPA)—exempt power supply
Power purchase agreement (PPA)—exempt power supply This Agreement is made on [date] Parties 1 [name of the Company] [of [address] OR incorporated in England and Wales with Company registration number [number] whose registered office is at [address]] (Purchaser) 2 [name of the Company] [of [address] OR incorporated in England and Wales with Company registration number [number] whose registered office is at [address]] (Generator) Background (A) The Generator is the owner and operator of the Facility. (B) The Purchaser wishes to purchase and the Generator wishes to sell the electricity that will be generated by the Facility in accordance with the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Act • means the Electricity Act 1989 (EA 1989); [Additional Supply Price • means the Charges applicable to an Additional Supply;] [Additional Supply • means quantities of electricity produced by the Facility and delivered to the Delivery Point in excess of the Supply;] Authority • means the Gas and Electricity Markets Authority as defined in section 1 of the Utilities Act 2000 or any successor to all or substantially all of its functions and powers, and includes a reference to Ofgem; Business Day • means any day other than a Saturday, Sunday or a public holiday in England on which the banks in London, UK are open for business; Change in Law • means the coming into effect of any Law
View the related q&as about Abatement
Where the freehold of a unit and service yard has been severed and are now under different ownership, how can the tenant of the unit protect the right of way which it enjoys over the service yard as part of a lease renewal of the unit? What action could the tenant take if the right of way over the service yard is blocked?
Where the freehold of a unit and service yard has been severed and are now under different ownership, how can the tenant of the unit protect the right of way which it enjoys over the service yard as part of a lease renewal of the unit? What action could the tenant take if the right of way over the service yard is blocked? LTA 1954 An order for the grant of a new tenancy pursuant to the Landlord and Tenant Act 1954 will be an order for the grant of a new tenancy of the ‘holding’. Where the current tenancy includes rights enjoyed by the tenant in connection with the holding, those rights must be included in a renewal tenancy, except as otherwise agreed between the landlord and tenant or in default of such agreement, determined by the court. See Practice Note: LTA 1954—terms of the renewal lease. In the current situation, the freehold of the unit and the service yard have been severed and are now under different ownership. However, the case of Nevill Long & Co (Boards) Ltd v Firmenich & Co identified that a right of way may continue despite the severance of the reversion. In order to preserve the tenant’s rights over the service yard, one way forward may be to issue lease renewal proceedings against the owner of the
How should a complaint against an abatement notice under section 51 of the Magistrates’ Court Act 1980 (MCA 1980) be made and what is the impact of non-payment of the court fee payable? What are the permitted methods laying a complaint under MCA 1980, s 51 to a magistrates' court?
How should a complaint against an abatement notice under section 51 of the Magistrates’ Court Act 1980 (MCA 1980) be made and what is the impact of non-payment of the court fee payable? What are the permitted methods laying a complaint under MCA 1980, s 51 to a magistrates' court? Laying a complaint in the magistrates’ court Certain proceedings before a magistrates’ court must be begun by the laying of a complaint under section 51 of the Magistrates’ Courts Act 1980 (MCA 1980). An appeal against an abatement notice is one such example. The procedure for laying a complaint comes under the magistrates’ courts civil jurisdiction as opposed to its criminal jurisdiction. The distinction between an information and a complaint is that an information is laid where the person charged has committed, or is alleged to have committed, an offence for which they may be punished, while a complaint is made where the person in regard to whom it is made is liable, or alleged to be liable, to have an order made upon them either to pay money or to do or refrain from doing any act. See Commentary: Distinction between information and complaint: Halsbury's Laws of England [522]. MCA 1980, s 51 provides: ‘Where a complaint relating to a person is made to a justice of the peace, the
What are the potential remedies against a landlord and the purchaser of an adjoining piece of land over which a tenant enjoys a right of way, when the right of way has been blocked?
What are the potential remedies against a landlord and the purchaser of an adjoining piece of land over which a tenant enjoys a right of way, when the right of way has been blocked? Options for grant In general, an order for the grant of a new tenancy pursuant to the Landlord and Tenant Act 1954 (LTA 1954) will be an order for the grant of a new tenancy of the 'holding'. Where the current tenancy includes rights enjoyed by the tenant in connection with the holding, those rights must be included in a tenancy ordered to be granted, except as otherwise agreed between the landlord and tenant or in default of such agreement, determined by the court. As identified in the case of Nevill Long & Co (Boards) Ltd v Firmenich & Co, a right of way may continue despite the severance of the reversion. Derogation from grant Given that the initial rights were granted by the landlord who
Who is liable for damage or injury to a tree subject to a tree preservation order if it falls, when the local authority has refused the owner’s permission to fell the tree (and will prosecute the owner if it does so) as it disagrees with the report commissioned by the owner that it is dangerous and at imminent risk of falling?
Who is liable for damage or injury to a tree subject to a tree preservation order if it falls, when the local authority has refused the owner’s permission to fell the tree (and will prosecute the owner if it does so) as it disagrees with the report commissioned by the owner that it is dangerous and at imminent risk of falling? This Q&A will consider four issues: • would the tree owner have a claim against the local authority? • if so, on what basis would he be able to bring a claim? • would the tree owner have a defence to any claim from a third party for damage or injury caused by the tree on the basis that he had done all he could to prevent a claim from arising but had been prevented from felling the tree by the local authority? • is there anything he can do to try to protect the public and his family given the local authority’s position that there is no danger posed by the tree? Tree preservation orders (TPOs) are governed by the Town and Country Planning (Tree Preservation) (England) Regulations 2012, SI 2012/605 which themselves are promulgated under the Town and Country Planning Act 1990 (TCPA 1990), as amended. A TPO is an order made by a local planning authority under TCPA
What is the order of abatement of legacies where the residue of a solvent estate is insufficient to meet testamentary expenses?
What is the order of abatement of legacies where the residue of a solvent estate is insufficient to meet testamentary expenses? Inheritance tax on unsettled property which vests in the personal representatives is a testamentary expense. See: section 211(1) of the Inheritance Tax Act 1984. Schedule 1 Part II to the Administration of Estates Act 1925 sets out the order of application of the assets within a solvent estate for the payment of funeral, testamentary and administration expenses, debts and liabilities. This order can be varied by an express provision in a Will. Legacies which are neither expressed to
Will a development be liable to pay CIL if there was a resolution to grant planning permission (subject to an s 106 agreement) before the CIL charging schedule is brought into effect but where the planning permission was granted after the charging schedule is brought into effect? Do the CIL Regulations prescribe that CIL will override the need for an s 106 agreement?
Will a development be liable to pay CIL if there was a resolution to grant planning permission (subject to an s 106 agreement) before the CIL charging schedule is brought into effect but where the planning permission was granted after the charging schedule is brought into effect? Do the CIL Regulations prescribe that CIL will override the need for an s 106 agreement? The Community Infrastructure Levy Regulations 2010, SI 2010/948 (the CIL Regulations) provide for Community Infrastructure Levy (CIL) to be charged on the grant of planning permission. See for example the definition of ‘chargeable development’ in CIL Regulations, SI 2010/948, reg 9, the calculation of liability in CIL Regulations, SI 2010/948, reg 40 and the abatement provisions which apply to permissions granted under section 73 of the Town and Country Planning Act 1990 (TCPA 1990) in CIL Regulations, SI 2010/948, reg 74A, all of which refer to the 'grant' of planning permission. Consequently, if the planning permission is granted after the CIL charging schedule is brought into effect, CIL will apply to that permission, irrespective of the fact that the resolution to grant was made before the charging schedule came into effect. In such circumstances discussions with the local planning authority should be initiated to ensure any related s 106 agreement
A Will provides for some pecuniary legacies and a specific gift of property, but there is insufficient cash to pay the pecuniary legacies in total. How should the firm’s professional fees and administration expenses be attributed as a charge against the pecuniary legacies and the specific gift?
A Will provides for some pecuniary legacies and a specific gift of property, but there is insufficient cash to pay the pecuniary legacies in total. How should the firm’s professional fees and administration expenses be attributed as a charge against the pecuniary legacies and the specific gift? The rules applicable to the payment of the deceased’s debts and funeral and testamentary expenses depend on whether the estate is solvent or insolvent. Solvent estates A solvent estate is one where the assets are sufficient to pay the funeral, testamentary and administration expenses, debts and liabilities in full. It is irrelevant whether or not legacies can be paid in full in terms of deciding whether or not an estate is solvent. Where the estate contains sufficient assets to pay expenses, debts and liabilities but insufficient assets to pay the legacies in full, certain legacies may abate. The rules for determining
Can food smells from cooking constitute a nuisance in the context of residential tenants?
Can food smells from cooking constitute a nuisance in the context of residential tenants? Private nuisance Private nuisance normally involves interference with the claimant’s enjoyment of their land, usually by noise, smell or by the causing of actual physical damage to their property. In such cases the claimant can bring a civil claim seeking an injunction and/or damages and/or abatement, as appropriate. See Practice note: Neighbour disputes—noise and nuisance. In Bone v Seale a pig-farmer was held liable for ‘constant malodorous air which frequently caused nausea’. Where the defendant has not caused the nuisance, but merely permitted it to continue, then proof of negligence is required. Liability only arises where the defendant failed to take reasonable steps to abate the nuisance once it knew or ought to have known about it. See Willis v Derwentside District Council. Who can make a claim? In Hunter v Canary Wharf, the House of Lords held that the right to sue in private nuisance can only be exercised by those with rights to the land affected, which will usually be the freeholder or tenants in possession. The claimant
In order to constitute a valid notice under the Highways Act 1980, section 143, does the notice need to specify the precise structure in the highway that is to be removed?
In order to constitute a valid notice under the Highways Act 1980, section 143, does the notice need to specify the precise structure in the highway that is to be removed? We are not aware of any legislative provision requiring a local authority to specify the precise structure to which a section 143 notice relates. Section 320 of the Highways Act 1980 (HiA 1980) sets out general provisions as to the form of notices under HiA 1980, but this simply confirms that such notices which are made or issued by (among others) a local authority must be in writing. The wording of HiA 1980, s 143 appears to make a notice personal to the ‘person having control or possession of the structure’. With this in mind, if a new structure was erected by a person not named on the original notice, it would appear that the notice would not apply to the new structure. For the purposes of the HiA 1980, 'structure' includes any machine, pump, post or other object of such a nature as to be capable of causing obstruction; and a structure may be treated as having been erected or set up notwithstanding
How can you appeal an abatement notice served for a statutory nuisance under section 80 of the Environmental Protection Act 1990?
How can you appeal an abatement notice served for a statutory nuisance under section 80 of the Environmental Protection Act 1990? For the purposes of this Q&A we have assumed the appeal is against an abatement notice for statutory nuisance issued in the magistrates' court. We refer you to Practice Note: Appealing an abatement notice for information on the process for appealing an abatement notice. The recipient of an abatement notice can appeal the notice within 21 days of service. The day it is received is the first of the 21 days, so the person responsible must act quickly if they plan to appeal. The permissible grounds of appeal are set out in the Statutory Nuisance (Appeals) Regulations 1995, SI 1995/2644. Grounds of appeal include: • lack of justification for the notice, eg the activity does not constitute a statutory nuisance • defect in the notice • unreasonable time limits for compliance • best practicable means to counteract the nuisance • unreasonable refusal by the authority to accept alternative requirements • service on a person who is not the person
View the related News about Abatement
Local Government weekly highlights—19 May 2022
This week's edition of Local Government weekly highlights includes News Analysis of the Public Procurement Bill and the Levelling Up and Regeneration Bill, analysis of Advinia Healthcare Limited v Care Quality Commission, which involves a judicial review of the newly issued guidance for care providers; and Elkundi v Birmingham CC, wherein the Court of Appeal clarified local authorities’ duties to provide suitable accommodation with regards to homeless applicants. Case digests include James v Dover DC and Swire v Canterbury CC, both of which involve judicial reviews of planning decisions. The weekly highlights also includes further updates on Brexit, public procurement, governance, education, social care, healthcare, social housing, planning, licensing, local authority prosecutions and local government finance.
Energy weekly highlights—5 May 2022
This week's edition of Energy weekly highlights includes Ofgem’s final decision and direction on the Access and Forward-Looking Charges Significant Code Review, BEIS' response to the consultation on the proposed amendments to the CfD AR5 Supply Chain Plan questionnaire, the opening of applications for the Industrial Hydrogen Accelerator competition and the reiterated commitment of close collaboration between the NSTA, TCE and CES in order to reach the UK’s ambitious carbon storage targets.
Environment weekly highlights—5 May 2022
This week's edition of Environment weekly highlights includes analysis on the use of climate stress tests, environmental, social and governance funds, the US Securities and Exchange Commission climate disclosure proposals, and the green capital regime for EU banks. In addition, this week the Department for Business, Energy and Industrial Strategy has announced that energy intensive industries (EII) compensation schemes will be extended by three years with an increased budget, the Environment, Food & Rural Affairs Committee has launched an inquiry into the issues impacting marine mammals, and the European Parliament has adopted a negotiation position on single charger rules.
Planning weekly highlights—5 May 2022
This week's edition of Planning weekly highlights includes: a court decision considering the intensification of use at a motor sports venue; additional councils joining the Local Land Charges Register and an order to enable the Construction Industry Training Board to raise and collect a levy on employers in the construction industry.
Public Law weekly highlights—31 March 2022
This week's edition of Public Law weekly highlights includes the latest updates on the conflict in Ukraine and the sanctions against the Russian state, including the issue of the new PPN 01/22 on Russian and Belarusian supplier contracts. Also included are selected Brexit headlines, including the fresh political impetus for UK-EU co-operation, the European Commission's proposed rules for the exercise of the Euratom's rights in the implementation of the EU-UK TCA, an inquiry into the UK's representation in the EU, progress in the UK's international trade priorities, as well as the latest post-Brexit guidance and SIs. This edition further includes feature analysis of the draft VABEO and the grounds for challenging post-Brexit regulatory decisions. Coronavirus (COVID-19) updates include the DHSC's and the ICO's additional guidance on the next steps, a two-monthly report on the active provisions of the CA 2020, plus key SIs and operational guidance from the courts. Also included, the reaction to the Spring Statement 2022, the passing of the Dissolution and Calling of Parliament Act 2022 (DCPA 2022), the agreement in principle on an EU-US Trans-Atlantic Data Privacy Framework, the EU's launch of a WTO challenge to the UK's Contracts for Difference (CfD) scheme, plus additional updates and analysis on constitutional and administrative law, information law, State aid, public procurement, public sector contracts, public sector pensions, and projects and infrastructure. Case analysis this week includes analysis of the High Court's ruling on the principles governing extension of time under the HRA 1998.
Pension scheme did not follow reasonable process when applying abatement rule on member’s re-employment (Mr E PO-25374)
Pensions analysis: The Pensions Ombudsman has upheld a complaint that a public sector pension scheme wrongly applied an abatement rule on a member’s re-employment. Martin Scott of gunnercooke LLP looks at the decision.
NHS staff face pension penalties once coronavirus (COVID–19) emergency powers expire
Law360, London: Thousands of doctors and nurses in the UK could be hanging up their scrubs due to the threat of a reduction of their pensions once the coronavirus (COVID-19) emergency powers expire next month, a financial adviser warned on 4 February 2022.
Assessment of brief fee where case settled before trial preparation commenced (Hankin v Barrington)
Dispute Resolution analysis: In a detailed assessment, the Senior Courts Costs Office reduced leading counsel’s brief fee from £110,000 to £27,500 after a high value personal injury claim settled nearly three weeks before trial but after the delivery of the brief. The Deputy Master took into account the fact that no work had been undertaken on the brief and also that the loss had been mitigated by fees earned during what would have been the preparation and trial period. Written by Alice Nash, barrister at Hailsham Chambers.
Sale of goods where title retained and quality disputed (Readie v Geo)
Commercial analysis: The High Court has held that a seller of goods with the benefit of a payment-in-full clause can obtain summary judgment for the price even where there is a dispute over whether the delivered goods meet the contractual specification. The court has further held that such a claim for the price is available even where title never passes due to a retention of title clause and where payment was to follow delivery. In doing so, the court conducted a useful review of the authorities on: (i) payment-in-full clauses; and (ii) section 49 of the Sale of Goods Act 1979 (SGA 1979) which sets out the circumstances in which a payment for the price may be maintained. Written by David Lascelles, barrister at Littleton Chambers, and counsel for the successful claimant (instructed by Matthew Howarth of Shoosmiths).
Environment weekly highlights—11 November 2021
This week's edition of Environment weekly highlights includes our continuous coverage of COP26, during which Global Coal to Clean Power Transition Statement was signed, 100 UK companies committed to halting and reversing damage to nature by 2030, a £290m funding package was announced by the UK to help vulnerable countries adapt to climate change, countries, automotive manufacturers, organisations and investors pledged to ensure all new car and van sales are net zero emission by 2040, and the International Aviation Climate Ambition Coalition and the Clydebank Declaration were signed. In addition, this week the Environment Bill received Royal Assent as the Environment Act 2021, we published an analysis of the Finance Bill 2022, the Department for Environment, Food & Rural Affairs (Defra) has published a report on reducing storm sewage discharges in England, ,the Department for Business, Energy & Industrial Strategy published the energy-related products policy framework, and the Environment Agency published the new Global Standard for nature-based solutions.
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