by Hardwick Legal | Oct 6, 2015 | Purpose Built (LexisNexis)
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Welcome to this month’s update by Lexis®PSL Property!
In this month’s edition, we look at seven cases to find the answers to these questions:
Who owns a Banksy mural on the wall of a commercially tenanted property?
What is the relationship between contractual obligations to use “all reasonable endeavours” to obtain planning permission and clauses setting out specific parameters for certain actions to be taken as part of that process?
Does bad/incomplete advice alone constitute professional negligence? What else must a claimant show?
Can time be of the essence where the date for performance/completion is not fixed by the contract?
What is the effect on the freeholder of a property where a (third party) landlord has purported to create a lease over that property without sufficient interest to do so?
How should mixed use buildings be treated for insurance purposes when seeking contributions to the premium from tenants of purely residential areas?
Is service charge certification is simply part of the service charge machinery or a condition precedent to payment?
Find all of the answers in this month’s highlights!
Written transcript:
Download the September transcript here
Video (with supporting slides, mp4):
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Source: LexisNexis Purpose Built
September 2015 Lexis®PSL Property Highlights
by Hardwick Legal | Oct 2, 2015 | Purpose Built (LexisNexis)
“The Lorax: Which way does a tree fall?
The Once-ler: Uh, down?
The Lorax: A tree falls the way it leans. Be careful which way you lean.”
The Ministry of Justice (MoJ) recently launched its consultation on reforms to the costs-capping rules in environmental challenges. In this post we consider the changes being put forward and what they may mean for the future of environmental litigation.
What prompted these reforms?
Three main factors appear to have sparked the touchpaper for this latest round of reforms.
- According to the consultation paper, there remains scope for greater clarity and certainty following both domestic and European judgments[1] that the pre-2013 environmental costs regime failed to satisfy the ‘not prohibitively expensive’ requirement of the Public Participation Directive or the Aarhus Convention.
- There have been continued Government efforts to tackle the ‘growth in unmeritorious judicial review’, most recently in funding.
- The headlines of the delayed implementation of several major infrastructure projects arising from legal challenges with HS2, London Garden Bridge, and Hinkley Point C nuclear power station to name but a few.
What is being proposed?
The proposals fall into four main areas:
- the scope of the regime in terms of the types of cases that are eligible for costs protection and whether the regime should be extended to apply to certain reviews under statute;
- the types of claimant eligible for costs protection;
- the levels of costs protection available and whether they should remain fixed or should be variable; and
- the factors which courts consider when deciding whether cross-undertakings in damages for interim injunctions are required in cases which fall within the scope of the regime.
Scope
‘Aarhus Convention claims’ (judicial review claims made under the Aarhus Convention’s provisions) are eligible under Civil Procedure Rules (CPR) 45.41(2) for the Environmental Costs Protection Regime (ECPR).
The proposals suggest amending Practice Direction (PD) 52D to include specific statutory reviews in Aarhus Convention claims. This means appeals against enforcement decisions relating to unauthorised development under sections 289(1) and (2) Town Country Planning Act and section 65(1) of the Planning (Listed Buildings Conservation Areas) Act 1990 would be eligible for the ECPR, dependent on their subject matter.
Claimants
The proposals suggest amending CPR 45.43 so that only a claimant who is a ‘member of the public’ can be entitled to costs protection. This would exclude proceedings brought by public authorities from the scope of the ECPR. In addition, the proposals float the idea that costs protection should only be granted once permission to apply for judicial or statutory review (where relevant) has been given.
Levels of costs protection
This is where the most significant changes are proposed. Among them are:
- A requirement for claimants to file and serve a schedule of their financial resources with their claim form, which includes details of any financial support from others;
- Increasing the current caps for individual claimants and other claimants respectively to £10,000 and £20,000;
- Reducing the cap for defendants to £25,000;
- A separate costs cap for each individual party in cases with multiple claimants or defendants;
- Giving courts the power to vary or remove any caps in appropriate cases (so long as any variation is in line with the Edwards principles, and not make the costs ‘prohibitively expensive’); and
- Changing the assessment of costs for defendants who challenge a claimant’s ECPR eligibility from indemnity to standard basis.
Factors for cross-undertakings in damages
Three amendments are proposed to PD25A. These are:
- for courts to apply the Edwards principles, when considering if continuing with proceedings would be ‘prohibitively expensive’;
- to take into account the combined financial resources of claimants in a multi-claimant case;
- and to clarify that the provisions relating to cross-undertakings in damages in Aarhus Convention claims apply only to an applicant for an interim injunction who is a member of the public.
Comments
In Dr Seuss’ children’s tale, the titular ‘Lorax’ who ‘speaks for the trees’ warns the Once-ler of the environmental consequences that a preoccupation with industry and economic growth may lead to.
Although the changes extend the scope of ECPR beyond judicial reviews, other potential restrictions on claimants are worrying. There is substantially increased financial scrutiny and burden on claimants. The paper expressly acknowledges that this could deter claimants from bringing a claim. Environmental activist groups have already expressed concerns which have not gone unnoticed by the Aarhus Clearinghouse newsroom.
The Government’s proposed ‘measured adjustments’ to the ECPR are unsurprising, in light of other policy developments and goals. The changes are intended to disincentivize ‘unmeritorious challenges to cause delay’ and so equalise the ‘uneven playing field’ for defendants.
This overlooks the fact that, in environmental litigation, there is often an imbalance of resources between claimants (typically members of the public or campaign groups) and defendants (typically a development company or government agency) from the outset. The proposals do little to quell this disparity and instead create real disincentives against members of the public pursuing Aarhus claims. If the reforms go through as currently drafted, there may be fewer voices willing or able to speak for the trees.
[1] Edwards v. Environment Agency (case C-260/11 [2013] and subsequent [2013] UKSC 78) and European Commission v. United Kingdom (case C-530/11; [2014] 3 WLR 853)
Source: LexisNexis Purpose Built
“Who will speak for the trees?” — MoJ “Costs Protection in Environmental Claims” consultation
by Hardwick Legal | Oct 1, 2015 | Purpose Built (LexisNexis)
Volkswagen has been making the headlines recently after it was revealed that it has been bypassing emission standards by using ‘defeat devices’. Alan Andrews, air quality lawyer at ClientEarth, takes a look at some of the legal issues pertaining to the current scandal enveloping the prolific German carmaker.
What is a defeat device?
A defeat device is a mechanism that recognises when the vehicle is being tested and modifies the emission control system accordingly—the Emissions Regulation (EC) 715/2007, art 3(10) defines ‘defeat device’ as:
‘[…] any element of design which senses temperature, vehicle speed, engine speed (RPM), transmission gear, manifold vacuum or any other parameter for the purpose of activating, modulating, delaying or deactivating the operation of any part of the emission control system, that reduces the effectiveness of the emission control system under conditions which may reasonably be expected to be encountered in normal vehicle operation and use.’
This allows vehicles to achieve lower emissions levels during the laboratory test than in real driving conditions.
What is the extent of this dishonesty on the part of Volkswagen?
The use of defeat devices is explicitly prohibited by both European law and US federal laws.
The full extent of Volkswagen’s misconduct is not yet clear. What is clear so far is that:
- Volkswagen is recalling around 482,000 diesel vehicles sold in the US
- Volkswagen has admitted that 11 million cars worldwide are fitted with the software
- the German transport minister, Alexander Dobrindt, has confirmed that vehicles in Europe were also fitted with defeat software
We do not know how many of the 11 million cars equipped with defeat devices are in Europe, but the figure could be high. Since 2009 (when Volkswagen admitted it started using defeat devices) over 40 million diesel cars have been sold in Europe. So far, only the following information on the number of vehicles fitted with defeat devices in Europe has been released:
- 2.8 million vehicles in Germany
- potentially, up to one million cars in Italy
- 2.1 million Audis (Audi is part of the Volkswagen Group) affected worldwide, including 1.42 million in Western Europe
Could Volkswagen be subjected to investigations in other jurisdictions?
The prohibition of defeat devices is not unique to the US. International rules (for instance, Regulation No 83 of the Economic Commission for Europe of the United Nations (UN/ECE)—Uniform provisions concerning the approval of vehicles with regard to the emission of pollutants according to engine fuel requirements) and national rules usually contain similar constraints. The Emissions Regulation, art 5 expressly prohibits the use of defeat devices in the EU.
The legal responsibility to ensure car manufacturers comply with EU vehicle emissions regulations rests with the member states and, more precisely, with the national approval authorities.
Only models that comply with the relevant emission standards can be granted an approval certificate. National approval authorities oversee the laboratory test. They must also ensure that car manufacturers produce vehicles that conform to the certificate approved for each model. Finally, national approval authorities have the power to conduct investigations into the use of defeat devices.
Several EU member states (including Germany, France, Italy and the UK) have announced that they are launching investigations into whether car manufacturers manipulated emissions data in their country.
The Commission has called on all member states to investigate the use of defeat devices in Europe and report back, so as to ‘ensure that EU pollutant emission standards are scrupulously respected’.
Are there concerns such activities could have been adopted by other manufacturers?
According to Transport and Environment (Europe’s main environmental NGO campaigning on the environmental impacts of transport):
‘There is strong evidence to suggest that the same tricks used by VW in the US have been used in the EU. And not by VW alone, but by other manufactures too.’
Awareness that diesel vehicles underperform significantly in real driving conditions dates back many years (see, for instance, Luc Pelkmans, Patrick Debal, Comparison of on-road emissions with emissions measured on chassis dynamometer test cycles, Transportation Research Part D 11 (2006) 233–241. The International Council on Clean Transportation (ICCT) has measured real driving emissions and found that on-road emission levels of NOx are on average seven times higher than the certified emission limit for Euro 6 vehicles (see ICCT, Real-world exhaust emissions from modern diesel cars).
After reviewing independent studies covering more than 146 vehicles, Transport and Environment found that just one in ten cars meets the NOx emission limits on the road (see Transport and Environment, Don’t Breathe Here).
The use of defeat devices is just one of various techniques car manufacturers use to artificially lower the level of emissions during the laboratory tests. This includes both emissions of those pollutants which are harmful to human health (such as NOx) and carbon dioxide. In most cases these techniques take advantage of flexibilities and loopholes in the laboratory testing regime (see Transport and Environment, Don’t Breathe Here, pg 25).
Could Volkswagen be subject to any criminal charges if they were found to have defrauded consumers?
Volkswagen is already facing criminal investigations in the US, Germany and Italy.
Volkswagen may be exposed to criminal liability for the breach of the prohibition of use of defeat devices provided under the EU regulations. In particular, the Emissions Regulation requires member states to provide for penalties where manufacturers use defeat devices (Emissions Regulation, art 13). The details of the sanctions may differ among member states depending on the respective implementing rules.
Criminal liability may also arise under different types of legislation—such as consumer protection laws (in particular, the Unfair Commercial Practices Directive 2005/29/EC). The behaviour of Volkswagen may constitute one of the unfair practices under the Unfair Commercial Practices Directive, arts 6 and 7, such as:
- omitting or hiding material information (such as the use of a defeat device), or
- providing misleading information on the main characteristics of a product or the results of tests
Member states must introduce effective, proportionate and dissuasive penalties for the infringement of the prohibition of unfair commercial practices (Unfair Commercial Practices Directive, art 13). National implementing provisions will vary between member states.
What are the potential ongoing implications of this scandal?
In the short-term, the scandal is triggering investigations into the use of defeat devices in many member states. The Commission invited ‘all member states to carry out the necessary investigations at national level and report back’. These investigations are not limited to Volkswagen, but will include diesel vehicles placed on the European market by all the manufacturers.
National approval authorities have broad powers to take action against the use of defeat devices. In particular, the Motor Vehicle Approval Directive 2007/46/EC, art 30(1) provides that the national approval authority ultimately has the power to withdraw type-approval. The withdrawal of the license prevents the production and sale of the affected model across the EU.
Before taking the decision to withdraw a license, the approval authority may take other actions, such as requiring the car manufacturer to return non-compliant vehicles.
If the approval authority that discovers the use of a defeat device is not the one that granted the license, it cannot withdraw the approval certificate. In such cases, the approval authority may ask the member state that granted the license to take the necessary corrective actions.
In the most serious cases, member states can prohibit the circulation of vehicles that they consider to constitute a serious risk to road safety or to seriously harm the environment or public health (Motor Vehicle Approval Directive, art 29).
More generally, the Volkswagen scandal proves that the current testing and surveillance system is outdated and vulnerable to abuse by manufacturers. The implementation of the EU emission standards regulations is left to self-regulation by car manufacturers.
The surveillance system is based on a network of national approval authorities which are paid by car manufacturers and compete for business with approval authorities in other member states, so there is a clear conflict of interest.
ClientEarth has expressed concern about the fact that the current inquiry into the use of defeat devices launched by the UK government will be carried out by Vehicle Certification Agency (VCA). As an industry-funded government agency, it is Client Earth’s position that the VCA lacks the necessary independence to conduct a credible investigation.
It is therefore evident that, in the long term, fundamental reform at the European level is needed. In particular, the Commission and the member states should:
- bring forward the introduction of a rigorous and ambitious real driving testing procedure, and
- establish a pan-European enforcement agency equipped with adequate inspection and enforcement powers, including the power to issue fines against vehicle manufacturers
Interviewed by Alex Heshmaty.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Source: LexisNexis Purpose Built
VW clouded by attempts to hide pollution levels
by Hardwick Legal | Sep 22, 2015 | Purpose Built (LexisNexis)
Parties to a JCT contract must precisely follow the contractual requirements in relation to payment and avoid any ambiguity. In this post we consider a recent case where this did not happen: Henia Investments v Beck Interiors.
This case examined the payment provisions under the JCT contract, and confirmed what a contractor needs to include in a payment notice. It also confirmed that an employer can issue a pay less notice in relation to a Contract Administrator’s valuation and that it is not necessary for the Contract Administrator to have operated the extension of time provisions to entitle the employer to deduct LADs.
The facts:
Henia had engaged Beck under the JCT Standard Building Contract (SBC). The works were delayed and the Contract Administrator issued a Non-Completion Certificate. Communications followed that Beck claimed were sufficient to trigger the extension of time provisions under the JCT.
The contract included the usual JCT requirements for payments and provided for due dates of the 29th of each month. This particular dispute concerned payment applications 18 and 19:
- 28 April 2015— Beck submitted Interim Application No 18 for payment of £2,943,098.95 for works valued up to 30 April 2015 (six days late)
- 6 May 2015— the Contract Administrator issued Interim Certificate No 18 for a sum payable of £226,248.95 (one day late)
- Beck did not submit Interim Application No 19 in May 2015
- 4 June 2015—the Contract Administrator issued its Interim Certificate No 19 for a payable sum of £18,893.53 (three minutes after midnight so three minutes late)
- 17 June 2015—Henia issued a ‘Pay Less Notice’ of ‘£0’ based on Interim Certificate No 19 and its deductions of liquidated damages that far exceeded £18,893.53
The three questions for the TCC were:
- Was Beck’s Interim Application No 18 an effective or valid Interim Payment Notice for the 29 May 2015 payment due date?
- Was Henia’s notice of 17 June 2015 an effective or valid Pay Less Notice?
- Would a failure of the Contract Administrator to make a decision on a contractually compliant application for extension of time render the Contract Administrator’s Non-Completion Certificate invalid, or otherwise prevent Henia from deducting and/or claiming liquidated damages?
The decision:
The interim application
Akenhead J noted that neither party had precisely followed the contractual requirements on payment. He emphasised that it must be clear and unambiguous in content, form and intent that an application relating to a specific due date is being made. Beck’s Interim Application No 18 (issued on 28 April 2015) was six days late for the April due date of 29 April 2015 and, on the facts, was held not to be intended to be the interim application for the May due date.
As a result, Beck’s Interim Application No 18 was held to be invalid.
The case is a stern lesson that payment notice applications must be free from any ambiguity. The judge also stressed that a contractor must also be clear and unambiguous when it states the amount it considers to be due ‘at the relevant due date’. So, the parties under a construction contract must adhere strictly to the provisions on payment notices, and the same will apply to anyone involved in administering the payment terms.
The pay less notice
Akenhead J held that the Pay Less Notice could validly challenge either the Contract Administrator’s certification or any contractor’s Interim Payment Notice. As the contractual payment provisions reflected HGCRA 1996, he concluded the Pay Less Notice could therefore raise not only deductions specifically permitted by the contract and legitimate set-offs, but could also include Henia’s Contract Administrator’s own valuation of the works.
The Pay Less Notice in question was also served in time, and this would have provided an adequate basis for an adjudication to determine the true value of the works and the validity of Henia’s claim for liquidated damages for delay.
Liquidated damages
Although obiter, this part of the decision is worth noting. The judge held that a contract administrator’s failure to operate the JCT SBC extension of time provisions does not prevent the employer from deducting liquidated damages. In doing so, he noted that proper operation of the extension of time provisions was not an express prerequisite condition to the employer’s right to claim liquidated damages.
Comment:
This case is yet another reminder of the importance of the parties sticking to the payment timetable set out in their contract. Employers and contractors would be well advised to diarise the relevant due dates and final dates for payment at the start of a project, as well as the date that the various notices required by the JCT contracts (and/or HGCRA 1996) must be served.
This case also provides helpful judicial confirmation that a pay less notice can be used to challenge a Contract Administrator’s valuation or an Interim Payment Notice under the JCT forms, as well as to deduct or set-off other amounts permitted by the contract.
It also confirms that failure by the Contract Administrator to make a decision regarding a contractually compliant claim for an extension of time under the JCT forms does not prohibit the employer from deducting liquidated damages. Although it may seem unfair to deduct liquidated damages where the extension of time provisions have not been operated, it remains open to the contractor to adjudicate in the short term.
Source: LexisNexis Purpose Built
Payment notices, pay less notices & liquidated damages under JCT Contracts
by Hardwick Legal | Sep 22, 2015 | Purpose Built (LexisNexis)
A new Planning Court has now been operating for just over a year, with the aim of speeding up the planning system, particularly in the instance of judicial review (JR). David Brammer, partner at Lanyon Bowdler, examines what changes have already taken place and explores what may come next.
What is the background to the changes?
The Royal Town Planning Institute (RTPI) assisted the Department of Communities and Local Government (CLG) when they were exploring the impact of JR on planning a couple of years ago. Preliminary scoping work on how to minimise the impact of JR and statutory reviews on planning decisions is now ongoing again.
There does not seem to be any immediate government commitment to introduce further reforms, but they do wish to keep this issue under constant review.
How does the court make the planning process more effective?
Various measures have been introduced to speed up the consideration of challenges and to weed out ‘unmeritorious’ challenges, such as:
- reducing the period in which a planning JR can be submitted (from three months to six weeks);
- introducing a new Planning Court and specialist planning judges drawn from the planning bar with target timetables for ‘significant planning cases’; and
- introducing a ‘permission filter’—a requirement for the court’s permission to be obtained—to bring a planning statutory review (to be implemented in the autumn).
What priorities does the new court now face?
CLG does acknowledge concerns remain over the impact of challenges on the implementation of planning decisions and is keen to understand these better.
The key issues have been summarised by the RTPI as follows:
- assessing the problems—looking at the impacts of challenges on the implementation of planning decisions;
- the government’s response—exploring views on government reforms to judicial review and statutory challenges over the past two years; and
- future actions—examining suggestions for further measures to minimise the impact of challenges.
What is the basis for the decision to institute the new Planning Court?
The government announced the new Planning Court early in 2014 and established it in the summer to ‘support the government’s long term plan for economic recovery’. They estimated 400 planning cases a year would be resolved quicker by being fast-tracked for hearings with specialist judges, instead of ‘clogging the main Administrative Court’.
This was in response to growth in the number of judicial review applications in recent years, causing the whole system to slow down despite the fact that published statistics demonstrate that only a small proportion succeed.
Applications to the High Court more than doubled from 4,300 in 2000 to 12,600 in 2012. Of the 440 that went on to a final hearing without being refused permission, withdrawn or settled in 2011, just 170 went in favour of the applicant. In 2012, the vast majority of applications, more than 10,000, were for immigration and asylum cases—and almost 200 were on planning issues.
Interviewed by Julian Sayarer.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Source: LexisNexis Purpose Built
The Planning Court – one year on
by Hardwick Legal | Sep 21, 2015 | Purpose Built (LexisNexis)
It is increasingly common for retirees to unlock cash by using their property, since this is usually their main asset and means of doing so. However, they should bear in mind “TANSTAAFL”. No, this is not an acronym for a fancy finance product or regulatory body, but for “There ain’t no such thing as a free lunch.”
Joanna Bhatia (LexisPSL Property) looks at some of the schemes for unlocking cash from homes - and sounds a note of caution for those thinking about entering into one.
Equity Release Schemes: the options
Older homeowners want to benefit from the value of their homes without having to move out of them. The ‘Equity release scheme’ is designed to achieve this.
There are two types of scheme:
- lifetime mortgages (the most popular) where there is a mortgage with the compound interest rolled up and repaid on death or the sale of the property; and
- home reversion plans where the owner transfers the property to the funder in return for an income and/or capital and a share in the final sale price. There will be a lifetime lease to the owner.
However, there are risks involved with both.
Equity Release Schemes: the risks
The main issue with lifetime mortgages is that interest on the release is compounded each year so that the debt escalates rapidly. This can create problems for those inheriting from the property owner.
Home reversion plans also have downsides including the fact that the homeowner receives considerably less than the full market value for the property and if the homeowner ends the plan early, he or she would need to buy back the share sold at full market value, which could be a lot more than it was sold for.
Sale and Rentback Schemes or “SRB”s
In addition to retirement products, there are others on the market aimed at helping people realise capital from their homes. A sale and rentback scheme (SRB) involves people selling their home, usually at a discount, in exchange for the right to remain in the property.
SRBs were all but outlawed a few years ago due to the potential for abuse, deception and exploitation and are now subject to strict financial controls (as are the equity release products) following reforms which came into force in 2014 as a result of the Mortgage Market Review.
The take home for homeowners? Take advice!
Homeowners should think carefully and seek financial advice before entering into any such schemes.
For more information on these and similar schemes see our Practice Note: Regulated home purchase and equity release schemes.
Source: LexisNexis Purpose Built
Retiree homeowners beware – unlocking income may cost…
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