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Where planning permission has been granted subject to section 106 being completed and further material considerations arise prior to planning permission being granted, will a new decision need to be taken based on the new considerations? If yes, can previous material considerations from the original decision be reviewed again?
Q&As
Until a planning decision notice is issued, there is no lawful consent, simply a resolution to grant—see R v W Oxfordshire DC ex p Pearce Homes. In the case of a section 106 of the Town and Country Planning Act 1990 (TCPA 1990) requirement coupled with the approval, there is a resolution to grant subject to the entering into of a satisfactory TCPA 1990, s 106. If material considerations have arisen since the resolution to grant, the planning authority is entitled to and indeed must reconsider the resolution
Where planning permission is granted on appeal and a partial award of costs is obtained, is it possible for the claim for costs to include a claim for Community Infrastructure Levy (CIL), in circumstances where CIL is payable in connection with the planning permission only because a CIL charging schedule was adopted after the refusal by the local planning authority but before the successful appeal resulting in the grant of planning permission?
Q&As
Parties are usually expected to meet their own costs in planning appeals, however, there is provision for an award of costs to be made in certain circumstances. The guidance as to when an award of costs may be made is set out in the Planning Practice Guidance, Appeals chapter, paragraphs 030–033 for appeals relating to sites in England. For sites in Wales, the guidance is set out in the Development Management Manual—Section 12 Annex: Awards
Where planning permission is granted subject to various planning conditions, including a condition to submit a construction management plan stipulating hours of construction, and that condition was subsequently discharged, can a developer apply to add a condition under section 96A of the Town and Country Planning Act 1990 to increase the hours of construction following the MHCLG guidance issued on 13 May 2020?
Q&As
Section 96A of the Town and Country Planning Act 1990 (TCPA 1990) allows local planning authorities (LPAs) to make changes to a planning permission ‘if they are satisfied that the changes are not material’. In deciding whether a change is material, an LPA must have regard to the effect of the change, together with any previous changes made under TCPA 1990, s 96A, on the planning permission as originally granted. Whether a change is ‘material’ will depend on the context of the overall scheme. TCPA 1990, s 96A includes power to make a change to a planning permission to impose new conditions or remove or alter existing conditions. It can also be used to make non-material
Where possession has been granted under a mandatory ground (such as section 8 possession proceedings) can a landlord ask for a suspended possession order whereby the order will not be enforced so long as arrears are paid and rent kept up to date? If so, and such order is then breached, can the tenant then delay enforcement in any way assuming that the court will not have discretion to then suspend the order?
Q&As
This Q&A refers to: • tenancy provides for rent payable monthly • rent is at least two months in arrears • Schedule 2, Part I of the Housing Act 1988 (HA 1988) Ground 8 was used in the section 8 notice • the tenancy agreement makes provision for the tenancy to be ended on the ground of rental arrears • the tenancy is continuing and possession is sought during the fixed term This Q&A looks at a situation where a tenant has over two months of rent unpaid and a landlord serves a section 8 notice seeking possession on the tenant. To
Where possession proceedings are already on foot following the service of a section 21 notice and the court is yet to determine an issue (regarding the absence of a copy of a previous tenancy agreement), is there anything to prevent the claimant issuing a second set of possession proceedings, based on a section 8 notice? Would the claimant’s inability to provide a copy of a previous tenancy agreement be fatal to the section 21 proceedings?
Q&As
This Q&A deals with two separate issues regarding regaining possession of a residential property: • whether the claimant can simultaneously bring two claims for possession • whether the lack of a physical tenancy agreement is prejudicial to a claim for possession under section 21 of the Housing Act 1988 (HA 1988) In relation to the first point, it is important to distinguish the difference between the types of notices served on a tenant to regain possession of a property. Following service of a section 21 notice, the landlord must wait for two months for the section 21 notice to elapse before a claim
Where possessory title for land has been held for 18 years and the party wishes to upgrade the title to absolute title, can that be done if there is a dispute regarding ownership of the land?
Q&As
Possessory title is granted by HM Land Registry where the applicant claims to have acquired title to the land by adverse possession or where they cannot produce documentary evidence of title for some reason. It will be granted if the applicant is in actual possession of the land, or in receipt of the rents and profits of the land, and it cannot be registered with any other title. Registration with possessory
Where power is reserved to an executor, is a deed of appointment of new trustees executed only by the proving executor, sufficient to appoint additional trustees to act in a continuing will trust?
Q&As
Section 8 of the Administration of Estates Act 1925 (AEA 1925) provides that: • where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the others or other to prove, all the powers which are by law conferred on the personal representative may be exercised by the proving executor for the time being and shall be as effectual as if all the persons named as executors had concurred therein • this section applies whether the testator died before or after the commencement of this Act AEA 1925, s 2(2) also provides that: 'Any conveyance of the real estate may be made by the proving executor or executors for the time being, without an order of the Court, and shall be effectual as if all the persons named as executors
Where private mortgages or legal charges are agreed in order to secure care home fees owed by an individual to a commercial client or to protect monies loaned to assist a friend or family member in the purchase of a residential property, Can such work be undertaken without an FCA licence under the current consumer credit activities regulatory regime? Are such legal charges or mortgages caught by the Consumer Credit Act 1974, and if so what formalities need to be complied with? Are there any exemptions which may be of assistance? In the case of a commercial client, looking to enter into a number of such agreements with their customers, should the client be advised to consider whether they require an FCA licence to enter into such multiple arrangements in the capacity of 'lender'?
Q&As
Regulation of consumer credit Regulation of consumer credit now sits with the Financial Conduct Authority (FCA). In consequence, parts of the Consumer Credit Act 1974 (CCA 1974) were repealed from 1 April 2014 with regulated activities coming under the Financial Services and Markets Act 2000
Where private mortgages or legal charges are agreed in order to secure care home fees owed by an individual to a commercial client or to protect monies loaned to assist a friend/family member in the purchase of a residential property, Can such work be undertaken without an FCA licence under the current consumer credit activities regulatory regime? Are such legal charges or mortgages caught by the Consumer Credit Act 1974, and if so what formalities need to be complied with? Are there any exemptions which may be of assistance? In the case of a commercial client, looking to enter into a number of such agreements with their customers, should the client be advised to consider whether they require an FCA licence to enter into such multiple arrangements in the capacity of 'lender'?
Q&As
BREXIT: 11pm (GMT) on 31 December 2020 (‘IP completion day’) marked the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. Following IP completion day, key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal
Where probate is not required, what is the limitation period for a claim brought under the Inheritance (Provision for Family and Dependants) Act 1975?
Q&As
Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) provides that the time limit for making a claim is six months from the date of the grant. A claimant should not delay. The court has a discretion to extend time which it will only do so if the claimant can make out a substantial case as to why they have not done so. There is no absolute limitation period, eg six or 12 years from the date of death for bringing a claim. There will be very few cases where some sort of grant, whether of probate or letters of administration, will not be needed. Presumably this will only arise in a case where every asset is jointly owned by the deceased and the beneficiary as beneficial joint tenants—ie there is only a jointly owned house and jointly held bank accounts with no insurance policies or private pensions which fall
Where proceedings are issued with two claimants, one with a claim valued at less than £2,000 and one with a claim valued at over £25,000 how would the costs of the lower claim be dealt with if the claimants were successful?
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Track allocation Different costs are available to parties according to the track the case has been allocated to. In the small claims track, limited costs are available (CPR 27.14). In fast-track claims, there are fixed trial costs (for further information, see Practice Note: Fixed costs—fast track trial costs (position prior to 1 October 2023)) and in multi-track claims there is more extensive cost management. If the claim was to be issued as one set of proceedings it would be allocated to the multi-track on the basis the value of the claim is in excess of £25 000. Therefore, the costs management and costs budgeting requirements would need to be considered. In particular, the costs would be subject to costs budgeting with a short form costs budget being required which means that the court would cost manage during the proceedings.
Where proceedings are issued within the limitation period against an incorrect name for a party, is the claimant required to correct the party's name and what would be the consequences of a failure to do so?
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If the claimant has identified that a claim has been issued against a party with an incorrect name, steps should be taken to correct the party name as soon as possible. How to correct? The rules concerning: • amendments to statements of case are contained in CPR 17 and CPR PD 17, and • adding and substituting parties to a statement of case are found in CPR 19 In particular, when limitation is not in issue, as the query suggests, reference should be made to CPR 17.1 and CPR 19.4. Much will turn on the particular circumstances, including the nature