Property team help Godwin Developments secure prime commercial site in Staffordshire

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Godwin developments secure new site

Our associate Ben Darlow has worked with developer Godwin on another significant land purchase in Uttoxeter. 

Godwin Developments have secured a prime site in Uttoxeter which it intends to transform into a brand-new commercial development for the Staffordshire market town. Godwin Developments are an experienced national property developer with a focus on residential, commercial and mixed-use schemes, in partnership with the public and private sectors 

The Brookside Road site they have acquired is opposite Uttoxeter railway station which is used by over 165,000 people every year. With an estimated population of 20,000 also living within a three-mile radius and a high daily traffic count, the development will be well-placed to serve the local community, as well as commuters from the wider West Midlands region. 

The land - located near a brand-new 22,873 sq. ft. Lidl supermarket in Town Meadows Way that opened in October 2021 - is very well suited to a range of coffee, food-to-go and fast food operators and has the potential to create new jobs locally as well as deliver additional choice to residents, shoppers and passing traffic. Demand for takeaways and drive-thru restaurants has rapidly increased and was the fastest growing sector in the first half of 2021, providing convenience to consumers to access their favourite offerings. 

Nikesh Solanki, Development Manager at Godwin Developments, said: “We are thrilled to have secured this prominent site in Uttoxeter and we are looking forward to transforming it into a new commercial development.  

“Sitting opposite Uttoxeter railway station and near the A518 – which connects Uttoxeter to Telford, in Shropshire, via Stafford and Newport – the site benefits from a busy and highly visible location, providing the perfect spot for a commercial operator to reach not just local customers but also those from further afield.” 

Our property team provided legal advice on the deal. 

Ben Darlow said: “We’ve been working with the Godwin Development team for more than five years and have seen them grow their portfolio with great success during this time. Commercial space used for food and drink is definitely on the up and demand from consumers and operators is growing. We look forward to seeing the project come to fruition.” 

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Ben advises on sales, purchases, leases, developments, property finance and investments, and everything else in between. If it is unusual or complex, get Ben involved.

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Even when working on the most complex of real estate projects, we propose commercially sound strategies that deliver results for our clients and address any issues that arise quickly. Our property development team takes a full-service approach to development work, advising on matters as diverse as financial structures, environmental law and property litigation so that all angles are covered.

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Demand for EV chargepoints means smart charging essential for construction industry

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Demand for EV chargepoints rises in the UK

As the UK continues to phase out petrol vehicles and encourage the mass uptake of electric vehicles, considerations have to be taken on new build homes and offices for EV charge point installers. Speaking in Parliament on 9 September, transport minister Rachel Maclean said the government will publish its response to a two-year-old consultation on mandating EV charge points later this year.

Expected to be included in the response is legislation requiring all new residential and non-residential buildings to have an EV charging station, news that will surely be welcomed by the hundreds of thousands of EV owners in the UK.

If passed, this legislation would make the UK the first country to mandate chargepoints in all new-build developments, and would be the latest in a string of indications that Westminster sees the future of personal transport as electric.

With the government recently confirming it will legislate to require all new-build homes and offices with parking spaces to have electric vehicle (EV) chargepoints, Shakespeare Martineau’s Neil Gosling, partner and head of residential development, and Isaac Murdy, trainee solicitor in the energy team, discuss the possible risks and available solutions.

As retrofitting charging stations is a lot more expensive than implementing the infrastructure during the construction stage of a new development (on average, £2,040 compared to £976 per space), it is positive to see the government looking to introduce legislation to combat one of the major barriers to drivers switching to electric.

However, while this would be a game changer in the shift to net zero transportation, the chargepoints pose huge potential challenges to the electricity distribution networks that will bring power to the points.

There are risks associated with multiple chargepoints being used at once, such as overloading their connections, and currently, the nominal load attributed to a development does not take EV charging stations into account.

With this in mind, it is vital the construction industry – whether developers or builders subcontracting the installation of a chargepoint – is aware of the potential hazards and the solutions currently available to avoid compromising its reputation.

The future of EV charging stations in the UK

The RAC estimates that, as of April 2021, there are around 239,000 zero-emission battery EVs on UK roads – with more than 100,000 registered in 2020 alone – along with 259,000 plug-in hybrids and 629,000 conventional hybrids.

With a plan to phase out petrol and diesel cars by 2030, the National Grid projects an EV stock of more than 11 million in Britain by that point and 30 million a decade later.

While this will help to meet decarbonisation commitments, new ways of thinking are needed to decrease the load demand created by EVs on an energy system that could face a 30% rise in peak electricity consumption in 10 years’ time.

Demand spikes for EV chargepoint installations

Chargepoints on all homes with a parking space would give the most utility to residents. However, it also places the greatest burden on the cables and wires distributing power to the estate – especially if EVs become as common as petrol and diesel vehicles, as they are projected to.

An analogy of why this would be a problem would be to compare the electricity to water. If we think about water pipes and all residents on a housing estate turn on their taps and flush their toilets at the same time, there will be a massive draw of water and either the taps will trickle or the pipes may even implode.

The same issue goes for electricity. Chargepoints can draw a lot of power from the grid and without control, there is the potential for huge spikes in demand, which could lead to brownouts (as insufficient electricity is shared around) or potentially the failure of distribution equipment that cannot handle the currents running through them.

Currently, many distribution network operators (DNOs) discount the possibility that everyone will be charging their cars while running the tumble dryer and boiling the kettle as too unlikely. This means that when calculating the additional reinforcement their networks will need when an estate is connecting in, they do not require any additional capacity to account for EV chargepoints.

This allows the network operator to give a more competitive price, but creates a problem for developers and drivers alike in the long run. We hope that as EVs become more ubiquitous, the real burden on the networks will be realised, and the Distribution Code that guides DNOs’ activities will be updated.

Smart charging shares data via the cloud

The solution is clear – smart charging and good communication with networks, and the government has acknowledged the importance of the former.

Smart charging refers to a system where an EV charging station can share its usage data via the cloud. This should help connect EV charging into the wider energy system, and could allow peak demand to be reduced, which would help prevent them becoming a burden on the power grid.

This is like the smart meter in your house being able to turn down the thermostat though, and will surely require commercial agreements to compensate people who will not get their vehicles charged as fast as they wanted.

We have started to see these put in place between high-profile housebuilders and installers to ensure the chargepoint will be controlled and what technology is needed to be put in place.

These early adopters are already showing how spikes can be smoothed by shutting down chargers when power is at a premium and turning them back on when demand is lessened. This can reduce the need for expensive reinforcement of the electricity network.

The solution is clear – smart charging and good communication with networks, and the government has acknowledged the importance of the former.

Smart charging refers to a system where an EV charging station can share its usage data via the cloud. This should help connect EV charging into the wider energy system, and could allow peak demand to be reduced, which would help prevent them becoming a burden on the power grid.

This is like the smart meter in your house being able to turn down the thermostat though, and will surely require commercial agreements to compensate people who will not get their vehicles charged as fast as they wanted.

We have started to see these put in place between high-profile housebuilders and installers to ensure the chargepoint will be controlled and what technology is needed to be put in place.

These early adopters are already showing how spikes can be smoothed by shutting down chargers when power is at a premium and turning them back on when demand is lessened. This can reduce the need for expensive reinforcement of the electricity network.

Looking ahead

To reach the UK’s ambitious target of becoming net zero by 2050, it is clear that renewables must become an integral part of housebuilding efforts.

And given that tens of millions of EVs could one day be on the UK’s roads as they replace petrol and diesel vehicles in a long-term strategy to decarbonise personal transport, domestic charging could soon become the norm.

To support this ambition, it is vital there is minimal impact on the grid and to deliver this, smart charging, delivered by commercial agreements, should be a priority.

To ensure they do not fall foul of the laws regulating electricity supply, generation and distribution, it is important developers take advice.

So, when specifying chargepoints to be installed on a new housing estate, taking a preventative approach by investing in the right technology and ensuring suitable agreements are in place will bear many benefits for residents and nearby locals, electricity suppliers and our planet in the long-term.

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Neil builds long standing working relationships with our clients by becoming an extension of their business. He is forward thinking and progressive in his approach.

As head of our residential development team, Neil has acted for the majority of the country’s top 10 national housebuilders as well as for significant institutional landowners, private builders and developers.

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Our construction lawyers know what it is to be in your boots – some literally, after previous careers in building surveying – so we don’t sit on the fence. Our advice is direct, perceptive and commercial, adding efficiency to any stage of a construction project.

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UK government to launch short term visas for HGV drivers and poultry workers next month

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The shortage of labour in the UK continues post Brexit and this time it could have an impact on Christmas. The government has had to act fast to tackle the shortage of HGV drivers and poultry workers, but is it little too late?

Temporary Visa Scheme

The government has announced temporary visas to be added to existing visas schemes that will begin in October for 5,000 HGV drivers and 5,500 poultry workers to attempt to ease the supply chain burdens both in the haulage and food industries. The UK Visas and Immigration are preparing to ensure visas are processed promptly that will be valid until 24 December 2021.

This move aims to ensure HGV drivers will be able to come to the UK for three months in the run-up to Christmas, providing short-term relief for the haulage industry and that farmers and food producers have access to the necessary workforce to mitigate any potential risks to Christmas food supply - something UK food and drink manufacturers have been asking for over the last few months.

Temporary visa are not a long term solution and are part of government’s package in an attempt to resolve an existing problem that has been aggravated by both Covid and Brexit. How the visa scheme will work in practice and whether a temporary visa will in fact relieve the pressure on supply chains just before the festivities, will no doubt be revealed over the upcoming weeks.

 

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Tijen works with global UK businesses advising on strategic international recruitment and supports with immigration compliance facilitating assignments and relocation.

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The Modern Method of Auction - A New Trend?

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Modern Method of Auction

Selling or buying a property in a traditional property auction can be a hair raising affair sometimes with nerves of steel involved. It is not for the faint hearted. But the auction arena is changing and another method of buying property and land is becoming increasingly popular - the Modern Method of Auction or the Conditional Auction and there are definite advantages for both the buyer and the seller.

How does a traditional property / land auction work?

Many different types of properties and land are bought and sold by a traditional auction method – often properties such as repossessed properties, uninhabitable properties, unmortgageable properties and land for development,

Under the traditional method the buyer is committed to the purchase and a completion date regardless of any potential issues they may then subsequently discover on the property. A 10% non refundable deposit is required and contracts are exchanged on the same day. Due to the immediate timescales buyers need to have their finances in place prior to attending the auction.

Completion must happen within 28 days.

How does the modern method of auction work?

Modern auctions take place on line.

With the modern method of auction the buyer pays a non-refundable reservation fee or reservation deposit within 48 hours of the auction ending which does not form part payment of the final selling price. The buyer is required to formally exchange and complete within 56 days of their solicitor receiving the draft contract from the seller’s solicitor. This is the reservation period.

After securing the property at the modern method of auction the buyer will need to carry out the usual searches, check the title and the information pack.

The auctioneer prepares the buyer’s information pack under the modern method of auction in the same way as they would have done under the traditional method.

The buyer’s information pack includes the title register and plan, property information questionnaire, water and drainage search and the local search.

The modern method of auction allows buyers time to check the property and to raise funds but the deposit will be lost if the sale does not proceed. It is definitely advisable to ensure the funding is in place and the title is checked prior to making the bid at the auction and entering into the reservation agreement.

The seller or buyer cannot terminate the reservation during the exclusivity period of 56 days which gives some buyers a grace period and limits the possibility of being gazumped. The reservation can be terminated at the discretion of the auctioneer.

The seller can also terminate if the buyer is in breach of its conditions.

The seller can reoffer the property for sale at the end of the reservation period should formal exchange and completion of contracts not have taken place.

What are the advantages and disadvantages of the modern auction?

There is more time for buyers - 56 days over 28 days in the traditional auction, giving some flexibility around raising finances, carry out searches etc.

Buyers are not committed to buying, although they will lose a hefty deposit, usually 10% of the purchase price, if the sale does not complete.

From a sellers perspective, this is probably not the route to take if attempting to sell difficult to sell properties or land, as the buyer is not committed to buy.

What are the advantages and disadvantages of a traditional auction?

Once the hammer is down, the 10% deposit paid and contracts exchanged, the buyer has entered into a legal commitment to buy and cannot pull out, which gives security to the seller.

For sellers, this is the best route to dispose of difficult to sell properties/land and often attracts cash buyers. This also means that sales are achieved much more quickly.

For buyers willing to take a calculated risk, there are good deals to be had.

The modern method of auction is one of the fastest-growing sectors in property, but there are distinct advantages and disadvantages and it remains to be seen whether this will trend will continue. As a buyer or a seller it’s important to investigate the detail of both options carefully.

For further information on using either of these routes to buying or selling, contact Caroline Irvine in our property team or Tom Ansell in the residential conveyancing team.

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Caroline advises clients on landlord and tenant work and supports companies when they are buying and selling properties.

Commercial Property Development

Even when working on the most complex of real estate projects, we propose commercially sound strategies that deliver results for our clients and address any issues that arise quickly. Our property development team takes a full-service approach to development work, advising on matters as diverse as financial structures, environmental law and property litigation so that all angles are covered.

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On the brink of collapse: insolvencies in the construction industry

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Insolvency in the construction sector

The pandemic has placed the construction industry under considerable pressure, with it accounting for 17% of all UK corporate insolvencies in May 2021. Now that restrictions have lifted, it’s hoped that many companies will be able to survive moving forward. However, sector leaders should ensure they understand the insolvency process – whichever side they’re on.

The challenge ahead

Even before the pandemic, the construction industry was facing a number of challenges, including wafer thin profit margins and materials and labour shortages. This left many businesses in vulnerable positions, particularly in the wake of the May 2020 construction boom.

The complexity of construction supply chains often means that one problem can have widespread repercussions, so it’s important to be aware of warning signs that things may be going wrong

Understanding the signs

There are often distinct warning signs that indicate that a project is headed for trouble, these include:

  • Problems contacting subcontractors, employers or site teams
  • Unexpected changes in management
  • Subcontractors suddenly removing plant and equipment from the site
  • Unexplained reductions in productivity or resources

In the event these tell-tale signs appear, it’s time to take action.

Next steps

The first course of action should be to review your contracts and documentation, which will help you to understand the risk and who carries it. A plan can then be formulated.

If the financial position is worsening, it’s important to maintain lines of communication with key stakeholders, including the team ‘on the ground’. Staying close to site activity will provide a greater insight into any future problems.

If the financial problems evolve into something more serious, there are things that can be done to manage the risk. Communication is vital, so take advice and engage with major stakeholders and funders as soon as possible. Getting key suppliers on board at an early stage may also help in the long run.

Law of Property Act (LPA) receiverships

Administrations and liquidations, where a business is placed under the control of insolvency practitioners, are still common. However, not all insolvency situations are equal and there is a growing number of distressed projects being placed into LPA receiverships. Here, a receiver  is instructed by a lender to take charge of discreet assets (usually a property) and sell them to recover the debt.

This option is particularly beneficial for construction projects as it is quicker, cheaper, and often means the project will be seen through to completion.

The director’s role

Directors and owners must be aware of their responsibilities and personal risk during an insolvency. Although it may be tempting to walk away from a struggling business, assisting administrators or LPA receivers could result in a better outcome.

Legal provisions such as The Corporate Insolvency and Governance Act 2020 are also in place to provide directors with time to consider all of their options.

As the pressure facing the construction industry increases, insolvencies will inevitably happen. Ensuring directors and senior leaders know how to spot the danger signs, could prevent further problems down the line.

Get in touch to find out how our  restructuring and insolvency team can help.

As development sites begin to re-open, significant challenges are rising to the surface causing further disruption to house builders.

In this webinar, we discuss the position with contracts and supply chains, employment contracts and workforces, and a practical look at how you can get your site back up and running with minimum delay.

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Frank is recognised as an expert in restructuring and insolvency law, and one who provides decisive practical solutions.

In any situation when things take a turn for the worse, our corporate restructuring and insolvency team work closely and quickly with clients to assess options deliver the best possible commercial outcomes where possible.

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Certain key insolvency measures to be phased out

New Legislation

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Key insolvency measures

Creditors will be able to issue Winding up Petitions against individual corporate debtors owing more than £10,000 from next month, even where debt may be “Covid related”. Commercial rent arrears are still excluded.

The Government has announced that measures put in place to protect business from insolvency during lockdown and the pandemic are to be phased out from 1 October 2021.

The Corporate Insolvency Governance Act 2020 was brought into force in June 2020 to prevent creditors from issuing winding up petitions and enforce insolvency.

Updated legislation will:

  1. See the debt threshold for a winding up petition be raised to £10,000 or more
  2. Require creditors to seek proposals for payments from a debtor business and allow 21 days for a response before proceeding with a winding up petition.

These measures will be in force until 31 March 2022, when it is expected that legislation will return to pre-pandemic measures.

What this means for businesses

Those will smaller debts will have more time to rebuild balance sheets and reserves ahead of the March 2022 deadline.

Those with larger debts, should be aware that the threat of the business being wound up (which has been very much in the background for many months) will now be an important consideration in the viability of the business going forward.

Directors should be looking at all options including; restructuring, refinancing and negotiations with creditors to avoid facing winding up petitions next month.

What this means for creditors

Creditors should consider the options available to them, where they have corporate debtors owing £10,000.00 or more. Where the debt cannot said to be legitimately disputed, businesses can again look to the demand and petition route as a means of enforcement.

We are expecting to see many of our creditor clients use this procedure straightaway, particularly against those debtors who are considered to be zombie companies or those who have not engaged or co-operated with them over the last year.

For debts less than the £10,000 threshold, creditors should continue negations with debtors and recover what they can through the courts or mediation.

What this means for landlords

For landlords there is no change to the legislation and tenants maintain protection from eviction until 31 March 2022.

Businesses should pay contractual rents where they are able to do so. However, the existing restrictions will remain on commercial landlords from presenting winding up petitions against limited companies to repay commercial rent arrears built up during the pandemic.

Full details of when and how the Government’s rent arbitration scheme will come into force are still to be confirmed.

For support with matters relating to restructuring, contact Andrew.Taylor@shma.co.uk

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Andrew works with companies, insolvency practitioners and lenders on restructuring and turnaround options.

He also advises on formal insolvency issues including the sales of assets and undertakings, validity of security/appointment, asset realisations, director’s conduct and antecedent transactions.

In any situation when things take a turn for the worse, our corporate restructuring and insolvency team work closely and quickly with clients to assess options deliver the best possible commercial outcomes where possible.

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Commercial real estate: is the office market getting 'back to business'?

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Commercial real estate

In earlier blogs we considered the impact of Lockdown 2.0 and Lockdown 3.0 on the commercial real estate market. 

One of the trends anticipated was expecting businesses to adapt by further trimming back their space requirements which were likely to be matched by a greater move to businesses taking short term flexible agreements, and a shift to serviced office space which can often be handed back at short notice. We expect these trends to continue well into 2021 and beyond.   

There is no doubt that this year has seen, various flexible alternative types of space being made available by savvy landlords and taken up by increasingly agile tenants. Tenants renting hot desks, private offices, serviced offices, and even taking space at so-called managed offices is also on the rise.  

So will the office market soon be back to “business as usual”?

As we emerge from restrictions, with more employees starting to return to the office, our city centres will become busier, but there is no doubt that the hybrid working model is here to stay.

Many businesses have seen the benefits of allowing staff to work from home both in financial terms and work / life balance. This means that there will likely not be such demand for traditional office space and the trends noted above will continue as the market consolidates.

This can only mean that there are many opportunities for both landlords and tenants to overhaul and continue to modernise their working spaces and there is real merit in exploring the market and seeking to seize those opportunities. 

What else can we expect?

We can also expect further disruption in the market following the Government’s announcement that it will bring in a binding arbitration scheme concerning arrears built up in the pandemic.

Essentially, this which will force landlords and tenants impacted by closures during the pandemic to agree terms on outstanding rental arrears, or have terms imposed by an arbitrator. It remains unclear as to whether this will be sector specific or have wider applicability.

We await further detail on how this is intended to work in practice and principles which will underpin the arbitration scheme. What it does mean is that the effect of the pandemic on landlord and tenant relationships will continue to reverberate well into next year. 

Innovative use of space is the future

It is not just traditional landlords and tenants who are seeking to leverage their property interests more effectively.  

The John Lewis Partnership, for example, has confirmed it is set to enter the landlord market by, in large part, making innovative use of its existing land. We understand that it is set to build circa 10,000 new houses / flats. They are in particular looking at sites above Waitrose supermarkets and land next to their distribution centres. By building upwards in this way, we can see that value of the foot print ought to increase, without having to buy additional land. 

We can expect other businesses to follow this lead and look harder at their existing property interests to see if they can be put to more profitable uses. 

For further information on issues discussed here, contact James Fownes or another member of the real estate disputes team in your local office. 

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James specialises in advising on and resolving all aspects of commercial landlord and tenant disputes, regularly involving dilapidations, forfeiture, the contentious aspects of lease renewals, service charge issues and the operation of break clauses.

Rent Dispute Resolution Guide

We work with landlords and tenants to help resolve commercial rent disputes.

To ensure commercial landlords and tenants are as prepared as they can be and work towards a sustainable enterprise we have put together a guide on everything they need to know.

Our property litigation specialists are also on hand to work with you to provide legal advice and support during negotiations.

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Construction disputes – to adjudicate or not to adjudicate?

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Construction disputes

In most construction disputes there is a familiar proposition that when seeking to settle a dispute, adjudication tends to be a preferred route to dispute resolution as it is quicker and cheaper than court proceedings.

However, in a recent case of Toppan Holdings Ltd and Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC) the Technology and Construction Court (TCC) has clarified the entitlement to adjudicate according to a collateral warranty.

What is adjudication in construction?

Adjudication in construction is a faster and less formal route of dispute resolution than resorting to relatively slow and expensive court proceedings.

The case and parties involved were Toppan Holdings Ltd and Abbey Healthcare  (Mill Hill) Ltd v Simply Construct (UK) LLP

The collateral warranty in question was to Abbey Healthcare, a tenant who had taken a long lease on a property built by Simply Construct.

It was executed four years after practical completion and eight months after remedial works had been carried out by another contractor.

Following an adjudication, Simply Construct resisted enforcement on the grounds that Abbey’s warranty was not a “construction contract” and therefore the adjudicator had no jurisdiction.  The TCC agreed, although this is the first instance and may be subject to appeal and change.

Critically, the TCC held that whilst the warranty was drafted to state that Simply Construct “has performed and will continue to perform diligently its obligations under the Contract”, the reality was that the works had already been completed and, even latent defects had been remedied by other contractors.

Therefore this particular warranty could not be a construction contract for the purposes of statute; it was not contract for the “carrying out of construction operations”.

This decision by the TCC is perhaps a surprise to many in the sector.  The statutory right to adjudicate is often the preferred route to dispute resolution and without this procedure available, the matter is likely to involve lengthy and costly formal litigation proceedings.

Is there a way to ensure an adjudication is still an option?

The answer is yes, but careful drafting of collateral warranties when disputes arise is therefore important.  It is possible to include an express adjudication clause and so not rely on statute.  Had this been included in the collateral warranty to Abbey Healthcare, then Simply Construct’s jurisdictional challenge would have not had merit. Another point to consider, and whilst not always possible, is that it is prudent to execute collateral warranties as early as possible during a project and whilst the construction works are still being carried out.

This case has helped clarify a point of principle regarding the statutory right to adjudicate.  To avoid potential issues in the future a careful review of relevant construction contracts is recommended and where required, express clauses can be inserted into contracts.

For further information on these or any other issues surrounding contracts or disputes contact Jayne Meakin or another member of the construction team in your local office.

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Jayne is a Legal Director with a particular focus in acting for developer’s using JCT procurement. Jayne leads of a broad range of projects working closely with colleagues in our property and corporate teams.

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Shakespeare Martineau advises on purchase on Britain's 'most expensive street'

Deal

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Luxury residential real estate purchase deal

London and Monaco real estate company REDD has purchased One Palace Green in Kensington Palace Gardens, London, to convert into a £100m luxury residential scheme, with the support of law firm Shakespeare Martineau.

The grade II*-listed 17,000 sq ft mansion, which backs onto Kensington Palace and dates back to 1870, will be sensitively restored and converted into a number of luxury homes following significant investment.

The deal saw REDD purchase the property via a complex multi-jurisdictional deal.

Simon Robinson, partner at Shakespeare Martineau advised REDD on the transaction, he said: “It is rare that high value investment and development real estate deals are simple, even when they look so initially. We always knew there would be complexities in this multi-jurisdictional matter but over the course of the year that we sat alongside REDD and the Marzocco family office we worked through a plethora of technical, legal and commercial challenges that were embedded this real estate purchase. 

Working under considerable pressure throughout the stages of the deal the importance of working as a connected team across our specialist departments - almost entirely virtual - was vital. From a personal perspective, the communication within the Shakespeare Martineau team enhanced our project management role and allowed me to interact regularly and as clearly as possible with the client and their wider team. This was highlighted as we worked with Counsel in across four separate offshore jurisdictions, dealing with a prestigious and sensitive listed property which is part of the Crown Estate.

Working closely with the Royal Borough of Kensington & Chelsea, The Crown Estate, local stakeholders and heritage groups to design the restoration, it’s anticipated REDD will submit a planning application later this year with construction planned for summer 2022. Completion is scheduled for 2024.

Russell Smithers, managing director of REDD, said: “One Palace Green is a landmark acquisition for REDD and will create one of the top-tier luxury residential developments in London. We will utilise our in-house development management expertise, with our team of extremely experienced individuals in the fields of heritage restoration and luxury design, to deliver the finest new residences on Kensington Palace Gardens. We are currently working on initial ideas and look forward to speaking to the local community shortly.

Shakespeare Martineau assisted with all legal aspects of the purchase including real estate, corporate, finance and tax. Working alongside Simon Robinson was Danielle Cooper, Lucy Saddington, Catherine Moss, Georgia Keogh, Christopher von Strandmann, Oliver Gutman, Joshua Hartle, Paul Wakefield and Jayne Meakin.

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Simon is a commercially focused and entrepreneurial real estate expert known for his calm, practical and commercial approach.

Commercial Property Development

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Our property development team takes a full-service approach to development work, advising on matters as diverse as financial structures, environmental law, and property litigation so that all angles are covered.

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Deal

Northern Trust acquires Tamworth Industrial Estate

Northern Trust has completed the acquisition of a 31,000 square foot industrial estate in Tamworth, with the support of law firm Shakespeare Martineau.   

The Tame Valley Industrial Estate comprises of six fully occupied units and brings Northern Trust’s Midlands portfolio to more than 1.3 million square feet, across 31 sites.   

The acquisition forms part of the property investors’ ongoing strategy to acquire and develop multi-let industrial assets to support the SME business community, with the entire portfolio supporting more than 20,000 jobs across the UK.  

Midlands firm Shakespeare Martineau supported on the deal by providing full due diligence on the estate, legal support for funding and all legal aspects of the site purchase.     

Samantha Vaughan, associate at Shakespeare Martineau who led the deal, said: “We have a long standing relationship with Northern Trust, and as well as acquisitions we support lettings across estates in the Midlands.  

“Property remains a solid investment and we’re seeing a lot of activity in this market. It’s also great to see investments in the West Midlands continue to grow as it remains a key site for light industrial, manufacturing and employment.”  

Director Tom Parkinson said: "We have been expanding our industrial portfolio through new acquisitions and developments; and this latest acquisition offers good quality industrial space which will complement our existing estates in the Midlands.”  

The Tamworth site follows recent acquisitions in Scotland and the North East.  

Shakespeare Martineau team also included partner James Gooch. 

 

 

 

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Guides & Advice

What do RPs need to know about the Leasehold Reform (Ground Rent) Bill?

The new Leasehold Reform (Ground Rent) Bill means that new long residential leases will be free from ground rent and leaseholders will no longer be subject to unexpectedly high costs payable annually. However, its implementation has the potential to impact on registered providers (RPs) guaranteed income streams.

Who will the Bill affect?

As the Bill currently stands, existing leases with ground rent included in the contract will remain unchanged. However, new leases, including those on existing developments, will have to be sold with a lease that has zero ground rent.

At present, only shared ownership leases are exempt. However, landlords and leaseholders should bear in mind that this could be subject to change as the House of Lords wants to include measures to protect shared ownership leaseholders. This will now be considered at the Committee stage.

Financial considerations

While not all RPs charge ground rent, it can be a vital source of income for those that do and helps to fund future social housing projects. However, once the reforms have been implemented, major changes to the way RPs fund developments may need to be considered. Currently, if an RP has sold off every flat in a building with a ground rent, the freehold land can then be sold onto a third party who can continue to generate an annual return from the rent.

Moving forward, with no ground rent to be included in new leases, the value of the freehold will be substantially reduced, and RPs will receive no ongoing revenue from the land, other than from the delivery of the management services. Once the flats have been sold to the tenants, they will no longer serve a social purpose and may become a drain on the RP’s resources, where these could be focused on their newer social housing stock.

The impact on social housing

The later living sector is also likely to be impacted. Currently, ground rent charges in retirement developments fund communal areas and additional services. Without them, funding will have to be found elsewhere. While the Government initially agreed that retirement homes would be exempt from the Bill, they have only instead chosen to delay implementation until April 2023 for this sector.

However, not all is doom and gloom. RPs that acquired flats in blocks from developers in the future, would most likely have found themselves owning properties with doubling ground rents, which they would have to pass on to their tenants, creating a further barrier to affordable housing. As a result, for RPs buying housing under Section 106 agreements following implementation, the Bill is a positive.

Moving forward

As existing leases aren’t impacted, RPs will still be able to collect ground rent to some extent, but they will need to factor in this loss of revenue with any future housing projects.

The changes mean that it is essential for RPs to review the viability of their current housing models. Purchasing or building flats with a view to selling on the freehold asset for a capital sum may no longer be a practicable option, so further innovation to generate revenue will need considering.

Although a welcome step for leaseholders, these reforms are yet another hurdle to jump for providers of affordable housing, removing an income stream that has historically not been crippling for its residents, but instead has provided a regular income stream to help in the delivery of their affordable housing products..

Contact us

Get in touch to find out how our Building Communities team can help.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director's responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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News

Shakespeare Martineau boosts legal planning team with double hire

We have welcomed two new property specialists to our Midlands teams; legal planning partner Anna Cartledge and legal planning legal director Julie Russell.

Operating from the Birmingham hub, Anna Cartledge has more than 15 years’ experience in legal planning, compulsory purchase and highways law, acting for a variety of public and private sector clients throughout her career including landowners, promoters, developers, local authorities, central government agencies, regional development agencies, and various NHS Trusts.

Anna has a particular interest in heritage issues and has advised a number of local authorities and private sector developers on various listed building consents. Anna is also highly experienced in negotiating planning obligations with complex cascade, review and clawback mechanisms, and she frequently advises on the best way to structure large scale sites so as to allow them to come forward on a phased basis.

Legal director Julie Russell join’s the firm’s Leicester hub with more than 14 years’ experience, working on all aspects of legal planning, development and infrastructure work. Julie has particular experience in dealing with Nationally Significant Infrastructure Projects and negotiating complex S106 agreements and infrastructure and highways agreements as well as providing strategic planning advice to housebuilders, commercial developers, landowners and local planning authorities.

She also regularly deals with planning enforcement, public rights of ways issues, planning appeals, planning due diligence on site acquisitions and challenges to planning permissions.

Anna said: “I am very much looking forward to being part of such a highly regarded and market leading planning team, full of supportive people who want to work together to flourish and grow the business. There is a real energy and sense of dynamism across the firm as a whole.

Alex Smith, managing director of the infrastructure and specialist markets business unit said: “We have a great reputation in real estate and work closely with our planning consultancy Marrons Planning to provide a holistic service to clients. From small listed buildings to large development projects, planning is a complex area law and it requires specialist knowledge, both Anna and Julie have great expertise and are well-placed to advise clients across the Midlands and nationally.

Anna and Julie’s appointment follow a raft of announcements including 13 internal promotions, six appointments in Milton Keynes and a further two in the East Midlands.

 

Getting to know Anna Cartledge, Legal Planning Partner…

What attracted you to Shakespeare Martineau? 

I was drawn to the culture and values of the firm, and the value that it places on empowering and recognising the efforts of everyone. Shakespeare Martineau has a very clear direction and a real “can-do” attitude and, since joining, I have been hugely impressed and enthused by the energy at all levels.

The planning team has a market leading reputation and I was very much drawn to joining a business that has both legal and town planning capability under one roof, which is a real USP in the planning sphere.

Tell us more about what you find exciting about your area of expertise.

As an area of law, planning is ever-evolving, fast-paced and diverse - no two days are the same! When we are faced with 'knotty issues' there are often shades of grey, rather than a definitive “yes or no” answer. The queries we face are often like exam questions, dealing with everything from strategic land allocations and heritage issues, to footpaths and common land queries.

Our role in navigating the planning world for our clients often becomes more of tactical and strategic advisor, with planning advice dovetailing other considerations and agreements.

For example., there can be frustration around the length of time it takes for a scheme to navigate its way through the planning system. While increased efficiencies within the system should be welcomed, this should be balanced against recognition of the importance of the planning system in terms of delivering meaningful and sustainable development, and in developing functional and attractive places to live and work. We need to empower new communities to be able to thrive.

What do you hope to achieve while working with us?

Having been a mentor for a number of years now, I firmly believe in the benefits mentoring can bring - both for those being mentored and those with mentees. I am hugely passionate about developing and nurturing future talent and want to work with those starting their careers at the firm, whether that's in the legal profession or not!

I am also keen to capitalise on all of the exciting opportunities coming forward in and around the Midlands – from the start on site of HS2 at Curzon Street, to proposed strategic infrastructure improvements on key highways networks and the delivery of meaningful housing numbers, there's certainly a lot of exciting things in the pipeline for the region!

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Products & Propositions

Getting construction sites back on track after lockdown

Getting construction sites back on track after lockdown

Are you a developer reopening your site following lockdown? We’re here to help you get your sites back on track as quickly as possible.

With the added pressure of worldwide disruption to supply chains, getting sites going again is going to throw up some significant challenges you may not have faced before.

  • Suppliers: It is likely that developers will face long delays as suppliers further up the chain will struggle with manufacturing and sourcing building materials – there will be a long lead-in time to get their production re-started again.
  • Cash: It’s also likely that prices will spike as demand quickly rises and supply needs time to catch up.
  • People/workforce: you may face problems in getting employees back onto sites, and will need to meet requirements for social distancing when you do.

As you will likely have relationships, agreements and contracts in place with your supply chain already – the best thing you can do now is to consider your current position.

Are there barriers to re-opening your sites?

Tell us about them on a free 30-minute video call with our specialist team or register for our webinar where we will discuss the position with employment contracts and workforces, contracts and supply chains and a practical look at how you can get your site back up and running.

Things to consider

  • Talk through issues with experts in employment, construction and development as well as commercial law
  • Find out options available to enable you to get back into business as quickly and efficiently as possible, minimising the impact of any delays
  • Discover routes to protecting yourself against a turbulent market and unpredictable supply chain
  • Consider potential new risks following lockdown and how your sites and staff can be prepared for them

Fill out our enquiry form or click below to request a call-back.

Coronavirus resources
In response to COVID-19, we created our coronavirus hub which includes advice, guidance and insight to help you navigate through these uncertain times. As we all begin to adapt and prepare for the future, our hub will evolve to provide you with further help and resources for surviving, reviving and beginning to thrive in life and business, throughout the challenging times ahead.

We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we have lots of educational and entertaining content for life and business visit SHMA® ON DEMAND.

Want to get your construction site re-opened as quickly and as safely as possible?

Fill out the form below to request a free 30-minute consultation.

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Meet the team

Missed our recent webinar on getting construction sites back on track after lockdown? Catch up here >>

Your guides to recovery & resilience

As the UK takes tentative steps towards an increase in economic activity and recovery, it is vital that businesses are prepared in every aspect. From financial considerations, employees, leadership and premises, to supply chain implications, health and safety and protecting your private wealth, our guide highlights what organisations and individuals should consider when moving from survival mode towards one where you recover and thrive.

We are here to help in your business and personal life - contact us today to find out more.

Your guide to recovery & resilience | Compliance – Health & Safety

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Guides & Advice

COVID-19 - Permitted development rights

COVID-19 - Permitted development rights

Recent amendments have been made to planning legislation by the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 No.412 to allow emergency development by a local authority or health service body. This came into force on 9 April 2020.

The legislation defines a ‘health service body’ to include NHS Trusts and NHS Foundation Trusts. There are geographical, spatial and height restrictions where development is not permitted, but it otherwise allows NHS Trusts to undertake development for the purposes of preventing an emergency, reducing/controlling/mitigating the effects of an emergency or taking other action in connection with an emergency. For example, providing testing tents, new buildings and enlarging existing buildings in the Covid-19 crisis.

The right is subject to a condition that any operational development is removed and the land restored within 12 months from the permitted use ceasing.

A full copy of the legislation can be found here.

When do the permitted development rights not apply?

  • If any part of the development is on land, which is a military explosive storage area, a site of special scientific Interest (SSSI) or contains a scheduled monument.
  • If any part of the development would be carried out within five metres of any boundary of a dwellinghouse.
  • If any part of the new building is within ten metres of any boundary and the height exceeds six metres. The same height restrictions also apply to additions or enlargements to existing buildings.
  • If the heights of any new buildings exceed the height of the highest part of the roof of the original building, or a height of 18 metres, whichever is greater. The same height restrictions also apply to additions or enlargements to existing buildings - If any moveable structure, works, plant or machinery required temporarily are located in a position within ten metres of the curtilage of a dwellinghouse, or within five metres of the site boundary.

It is important to remember that any development close to the site boundary, or close to residential dwellings, will trigger the requirement for a planning application.

NHS Trusts should be made aware that the Local Planning Authority must be notified following commencement of any permitted development.

Contact us
For advice and support to carry out development for the purpose of tackling the COVID-19 crisis, or any other planning query, contact Brian Mullin or Sachin Parmar in our planning consultancy team, Marrons Planning.

Shakespeare Martineau has launched a free legal helpline offering bespoke guidance on a range of subjects from employment and general business matters, through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

General advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

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By 2050, Britain aims to be carbon neutral, with the ‘Future Homes Standard’ being part of the plan. Due to be enforced in 2025, it will set minimum environmental standards for new housing.

Martin Jones, partner and head of our projects and infrastructure group, explains how the construction industry can ensure UK housing reaches these standards:

Quantity or quality

All across the UK, housebuilders and developers are in a constant battle over whether to build more homes to meet demand or create high-quality homes to suit people’s changing needs. Unfortunately, budget constraints have led to some new homes failing to meet the required standards.

However, once the Future Homes Standard comes into play, standards must improve causing challenges for the construction industry.

Diversifying housing stock

Although in other European countries housing stock has been diversified to suit the changing needs of the population, in the UK, homes are largely still built to cater for the average 2.2-person family.

This is no longer viable, with greater flexibility needed now more than ever.

Redefining the housing market

The Future Homes Standard will give developers and housebuilders the chance to create a wider range of properties that can be adapted to suit people’s needs.

However, the UK housing market is notoriously slow to adapt, making this exciting opportunity a potential source of stress for many developers, especially the ‘big players’. As well as having to introduce new materials, which will need to be thoroughly tested, there will also be a variety of other challenges to overcome, such as the development of new skillsets.

The price of quality

Unsurprisingly, the improvement in standards will likely increase the price of new homes. Some schemes are already working to tight margins, and these may become even more difficult to deliver, and sell, once the new standards are brought in.

In order to encourage developers to follow the new standards, the UK government must provide solutions. A good starting point would be a material reduction of Stamp Duty on homes that meet the quality guidelines. The most important thing is that the solutions are deliverable, not just aspirational.

Cutting corners is no longer acceptable, and the housing market must move forward to ensure homes are fit for the future. Housebuilders need to work together with the Government, allowing change to occur and costs to be shared. If implemented successfully, the Future Homes Standard could provide a whole new outlook for UK housing.

Learn more about our projects and infrastructure team.

Paul Wakefield, one of our planning specialists, explains what planners need to be aware of once these new rules are introduced:

What is biodiversity offsetting?

Damage to habitats due to development can upset levels of biodiversity. To ensure this doesn’t happen, the Bill will introduce planning policies that encourage developers to leave sites with greater biodiversity than when they first entered them.

This mitigation hierarchy approach can involve avoiding, minimising, remediating, and if necessary, compensating for any negative impacts on biodiversity. If unable to do this, developers must cover the costs of replacing and maintaining the lost habitats.

Are there any potential issues?

The Bill is a positive step forward for the environment, but it could lead to a host of financial challenges:

New costs for developers
Higher property prices to balance the new costs
Additional costs for Local Authorities (LAs), who will need to employ ecologists to create mitigation strategies
Dishonest developers may bypass the mitigation hierarchy by falsely claiming they have used all options available and instead go the compensation route, forcing LAs to invest in replacing the habitat

In the case of a LA not being able to afford replacement habitat, the new rules could result in a net biodiversity loss. Therefore, the Government must ensure that compensation is only used as a final resort.

Keeping up to date with the Bill

Before the Environment Bill is fully implemented, a number of political events and legislative changes must happen. If Brexit fails to occur, EU environment law will still be in place, and the disruption to Parliament after the Conservative leadership contest could throw a spanner in the works. It is also likely that further changes to the Bill’s legislation will be made, so planners must stay on top of the rules and prepare accordingly.

In order to meet its ambitious sustainability targets, the UK must bring in measures such as biodiversity offsetting, as well as clean air and zero avoidable waste strategies. Although there is sure to be an increase in financial and time investments for developers, in the grand scheme of things, the new Bill carries many more benefits than disadvantages.

Peter Dilks, our partner and head of Nottingham real estate, explores the reasons for Nottingham’s success and what needs to be done to ensure it continues:

Nottingham is a student hub, and this has helped the real estate market to thrive. As the student population grows, the amount of private rented sector/built-to-rent developments that are needed grows too, with graduates deciding to remain in the city.

These developments are transforming the city centre, and there are several schemes planned to continue the growth of the student and graduate market.

As well as this, the development of the Broadmarsh area and office schemes such as the redevelopment of the Redmayne & Todd building will assist both the leisure and business sectors within the city, boosting employment opportunities and providing high-grade office and retail space for prospective tenants.

However, these schemes are not enough to keep Nottingham’s growth on an upward trajectory. More creative solutions are needed to provide larger businesses with the units they need to move to the city. After all, affordability can only do so much.

A focus on transport connectivity is also necessary for Nottingham’s continued success on the regional and national playing fields. The East Midlands HS2 Hub at Toton could revolutionise business and personal travel in the area, strengthening connections to Birmingham and the rest of the Midlands.

Nottingham Council is willing to help the real estate sector succeed and has approached planning applications to grow the ‘Build to Rent’ sector in a pragmatic fashion. Nevertheless, improvements are always possible. For example, Nottingham’s neighbour, Leicester, has gained support in the form of the city’s Mayor, Peter Soulsby, allowing development to happen more proactively. It may be worth Nottingham assessing this approach carefully, in order to learn the most effective strategies when it comes to real estate development.

The developer aims to extend the rear of the building to deliver an additional 26 flats, bringing the total number of proposed residential properties to 66 as part of the £9.6m regeneration project.

Hoping to start the project this summer, the latest planning application follows lengthy discussions with Swindon Borough Council which have been going on since July last year. As well as Swindon Borough Council, consultations with South Swindon Parish Council and other key stakeholders in the local community have also taken place.

Brian Mullin, planning consultant at Marrons Planning, which is part of the firm, submitted the application on behalf of Blewbury Court Ltd. He said:

“The latest planning application is the latest phase in a series of planning permissions negotiated with Swindon Borough Council for the regeneration of this part of the Old Town. The apartments will deliver high quality rental accommodation for young professionals, with the typical individual profile tenant having spare income and seeking active and contemporary urban living. There are fantastic heritage benefits by securing the refurbishment and future use of the Grade II listed Offices and the enhancement of this neglected part of the conservation area around Little London Road and Albert Street.

“This investment will support and increase the strength and capacity of the local community, improve the vibrancy of the area and help to contribute to health of the local economy.”

Mark Holden of Blewbury Court Ltd, said:

“We are delighted after much investment and hard work to save this important building from neglect. Our aim is to preserve this pinnacle of the Old Town’s history, whilst creating high-specification, competitively-priced homes which will help the immediate population in Swindon and bring a much-needed boost to the local housing market.”

What is a prescriptive easement?

Often an individual will use a right of way over a privately owned road to access their house, or to access their business premises, for many years without issue. It only becomes an issue when the use is challenged, interrupted or the private landowner wants to charge maintenance costs for the upkeep of the road.

“We’ve used that road for access for as long as I can remember” and “No-one has ever told us we can’t use the road” are common thoughts that might indicate you are in a prescriptive easement situation.

What is the issue?

Whilst a prescriptive easement does not legally need to be registered with the Land Registry for you to benefit from it, formal registration is beneficial as a way of evidencing the existence of your right and protecting it from challenges by the current and future owners of the land your right relates to.

Situations like the above happen for many reasons. It is usually due to a historic failure to grant a formal right when a property is transferred, the need for such a right was not apparent at the time, or the nature of the property has changed over the years and therefore no formalities were considered regarding necessary rights.

How can we help?

The Land Registry are cautious about allowing the registration of prescriptive easements as they are based on potentially unclear and uncertain practical usage, rather than strict formal wording in a deed.

To protect your right, we can apply to the Land Registry on your behalf to register your right against your property, and also against the property your right is over. In order to do this, documents must be provided to the Land Registry by way of statements of truth and statutory declarations, evidencing the extent of the right and the minimum 20 years’ usage. Without this, the Land Registry will not accept the intended use of the right.

We can help you prepare these necessary documents to ensure your argument and application is as comprehensive as possible and therefore likely to be accepted by the Land Registry.

This stage of the development will see a considerable housing boost for the local area and is due to be finalised in six years’ time with an estimated worth of in excess of £100 million.

As well as providing 375 new homes, the project will deliver vital infrastructure improvements, educational and retail facilities, and a stadium sited between Leamington Spa and the M40.

A further 735 homes will be created in the area as part of a wider scheme, north of Gallows Hill. The construction of a spine road by Galliford Try Partnerships will link this development to Europa Way itself and will also carry all utilities to the development.

Caroline Irvine, head of commercial property in the Stratford office of Shakespeare Martineau, said: “We have collaborated with Galliford Try Partnerships on several pieces of work over the last few years. Europa Way is the latest project we have been involved in with the company and it is a great local scheme to be part of.

“There have been a few obstacles to overcome, but through working with Galliford Try Partnerships, the local authority and other third parties, the project is ready to begin. It will provide a significant boost to housing and infrastructure, benefitting the local area greatly. Over the next few months, we’ll be watching the scheme unfold, and are sure it will be an important addition to Warwick and Leamington Spa.”

Darren Bale, regional director, West Midlands, at Galliford Try Partnerships, said: “Working with Shakespeare Martineau again has been a pleasure. This is a high-quality project and a huge development opportunity for us in Leamington Spa. It will contribute significantly to the new build housing market in the local area, bringing about much-needed housing.”

For more information, please contact Caroline Irvine, or another member of the commercial property team.

Is there any such thing as an “easy” site? Even if you find land with reasonable planning prospects, an absence of gas pipelines, electricity wires, pylons or isn’t contaminated, it is so often the case that the title will be peppered with a number of outdated and potentially defunct covenants.

So what can you do if there is a covenant hampering the development potential of your land?

It is first important to consider whether the covenant is actually enforceable. Broadly speaking, the covenant must:

Even if it the covenant is technically enforceable, there are options available for developers to explore:

1. Request to remove the covenant from the Land Registry title

There are instances where it is possible to remove the covenant directly from the Land Registry title. This is possible where it is clear that the land benefitting from the covenant and the land burdened by the covenant has at some point been in the same ownership, meaning the covenant will have fallen away.

However, it is important to note that in many instances, too much time has passed, or the land has changed ownership on too many occasions to provide enough evidence to the Land Registry that the covenant has fallen away. This makes this a difficult and often unsuccessful route.

2. Approach the party with the benefit of the covenant and negotiate its removal

If you are able to trace the party who benefit from the covenant, another option is to approach them directly to negotiate its removal.

This does however come with the danger that they may want monetary compensation to release the covenant. There is also the chance that they could refuse to remove it at all. Further, by contacting them you would be highlighting to them that your development would breach the covenant, make indemnity insurance near impossible to obtain. This means that this approach is rarely used in practice, unless the covenant is modern and the land ownerships have changed little or not at all since the covenant was first imposed.

3. Apply to the Land Tribunal to modify or discharge it

There is a procedure under Section 84 Law of Property Act 1925 to make an application to the Land Tribunal to modify or discharge a restrictive covenant. The Tribunal may then decide that the covenant in question is obsolete due to changes in the character of the burdened land, changes in the character of the neighbourhood, or other material circumstances

Whilst this is a potentially time consuming and costly exercise, it is a route that has been widely used. A recent case (Geall, re Vine Cross [2018]) confirmed that the tribunal could modify or discharge a restrictive covenant, even where the original party who entered into the covenant still owned the land, so there is still hope of success even where the land has not changed hands.

4. Put in place an indemnity insurance policy

Unless you can remove the covenant from the Land Registry without involving the party with the benefit of the covenant, e.g. by proving it was not registered correctly or that the benefit and burden of the covenant have legally merged, then the best (and definitely quickest) course of action would be to put in place an indemnity insurance policy.

Depending on the proposed use, nature of the covenant and estimated gross developed value of the land, an indemnity insurance policy can range from a few hundred pounds to tens of thousands of pounds.

Whilst policies are not always available to purchase before planning permission is granted, which leaves the developer open to risk. This can be mitigated by structuring the purchase documentation on a conditional basis but the Developer is still incurring planning costs which could be significant and so if the party with the benefit of the covenant does show up, then the developer is already out of pocket and several months have been wasted.

But it is clear there is no universal cure…

That is not to say that restrictive covenants cannot be used properly where there is a genuine need. Indeed, they can be very useful in such cases where a seller wants to protect the amenity of its retained land. What is most important is that all parties act sensibly when drafting restrictive covenants going forward. In 100 years’ time or even 40, it is likely that the world will have changed so much that the covenants will not be relevant any more, and the future developers and lawyers will still be wrestling with more covenants and even more “untidy” titles.

As legal partner to Commonwealth Games England, we are in awe of the fabulous dedication of the athletes and our eyes have been gazing towards the 2018 Games for some years. Yet for a host city, the greatest benefit is not the event itself, it is the enduring legacy of the Games.

However, as the Gold Coast Commonwealth Games draws to a close and attention turns to Birmingham and the countdown to 2022 you have to ask what might Birmingham’s legacy be from the 2022 Games as host city? Adrian Bland, Head of Commercial Real Estate at Shakespeare Martineau and Chair of Urban Land Institute in the Midlands, provides his thoughts…

Brand and perception – the new “diverse, young, contemporary city” will put on the map both through the global TV audience but also with an anticipated increase in tourism to the city of between 500,000 and one million visitors on each day of the Games. If Birmingham can follow in the footsteps of the likes of Welcome to Yorkshire and capitalise on the value of hosting the Grand Départ (Tour de France 2014) it will do very well.

Infrastructure – the accelerated investment in systems such as the Sprint rapid bus transit lines – improving connectivity and spurring new development – will enhance the region`s infrastructure for future generations in a way that wouldn’t have been possible without hosting the Games.

Facilities – with an enhanced Alexander Stadium and a sparkling new Aquatics Centre in Smethwick, Birmingham will be able to complete with other cities to host even more global events and for local residents to enjoy.

Housing – the 1,000 unit athletes’ village will be turned into affordable housing for the city and act as a catalyst for more residential development in Perry Bar and the first phase of a wider programmes to deliver up to 3,000 new homes – part of the Birmingham Development Plan which looks to introduce 50,000 new homes by 2031.

Momentum – the city will be given a real turbo boost as a result of the Games. The acceleration of activity comes at a time of long-awaited resurgence with HS2, Metro extension, JLR, HSBC and more.

Pride – Brummies have been rediscovering their swagger – the Games will provide another boost to civic pride.

Health – hard to achieve but if the Games can increase long-term participation in sports and exercise, that could be the most valuable benefit of all.

For those of you who follow the Commonwealth Games bidding process, you will know that usually cities have seven to eight years to put everything in place as part of the process, but 2022 is different, Birmingham will have just four years. And experience of global events elsewhere makes it clear that legacy does not just happen, it needs to be built into plans – whatever the timetable.

Just take a look back at the London 2012 Olympic legacy, the organisers were keen to ensure they didn’t follow in the footsteps of Athens 2004, which left venues abandoned once the Games had departed. So it took giant strides to ensure legacy was considered in the planning. The result has been a qualified major success: accelerated transformation of East London, new housing, new infrastructure and new jobs but criticism about some of the community impacts. Birmingham can learn from what went well and what not so well in London – and other host cities such as Turin, Vancouver and Auckland.

For Birmingham, there needs to be absolute clarity about what is sought, how to secure it and who will deliver what. All the more so in this short timescale. It is not just the athletes who will need world-class focus, preparation and personal bests. It’s our civic leaders and their teams too.

The announcement was well received, with many seeing it as a positive step towards fixing the housing shortage. However, without more radical reform, current restrictions could scupper the chances of any real progress being made by the public sector.

The announcement lacked detail, meaning that at this point it is impossible to gauge how ambitious the Government is prepared to be. The decision to involve councils directly is a smart move, however. In fact, it is essential – the last time 250,000 new homes were built in a single year was in 1978 and then over 40 per cent of these were built by local authorities. Tackling a crisis on this scale clearly requires all hands on deck.

The early indications are that the Government’s proposals won’t be enough to make a significant difference. The funding currently proposed would only be enough to create around 25,000 extra homes by 2021. The UK’s population is set to exceed 70 million before the end of the next decade, according to the Office for National Statistics. Given that there is already a dramatic lack of social and affordable housing, something more drastic will be needed. It isn’t only about funding, though. Current restrictions will need to be relaxed, so as to allow local authorities to borrow and spend their own money more freely on house building. Council’s should be able to retain 100 per cent of the proceeds from Right to Buy sales so that they can be reinvested in more housing. Councils will need more certainty about the level of future rents to help guide their investment plans. They may also need to work collaboratively with housing associations and private sector developers, so as to fill skills gaps in their teams.

It may also be time for a rethink of a number of planning restrictions. For instance, green belt land is highly protected across the board, despite the fact that a significant amount of it is of low environmental value. There is a popular misconception that equates green belt with open countryside, but this is often far from the case. If the plots of land most suitable for development could be released from the green belt, councils could deliver vital new housing for local people in some of the most sustainable areas in the UK.

All of this could help facilitate more council house building – which would make a significant contribution to boosting housing supply.

The Government has made a positive move in calling for councils to once again start building. However, it must now match this with commitment and action. More funding will be needed and restrictions on local authorities’ finances and planning capabilities will need to be relaxed. Council planners will need to be ready. Their support and guidance will be fundamental in getting this “new generation” of council homes very much on the ground.