The Practical Lawyer


Foreign developers – tax

The tax position of non-resident developers and traders changed dramatically on 5 July 2016.

Profits from trading and developing UK land are now chargeable to UK tax even if the trader or developer is non-resident and does not have a ‘permanent establishment’ in the UK. Previously, the ‘permanent establishment’ requirement meant that many non-residents were able to avoid UK corporation tax.

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Right to light – injunction

An injunction has been upheld against a developer even though the right to light infringement was valued at £886 (and the cost of alternative building works was £6,000). The key point was the bad behaviour of the developer.

The traditional approach as to whether an injunction should be granted in a right to light case was set out in Shelfer [1891]. Importantly, if the injury to the neighbour was ‘minor’, then that could be compensated by a payment of damages, with an injunction being refused. However, that simplistic approach was rejected by the SC in Coventry [2014], with a more flexible approach being preferred. Thus, this latest case is a good illustration of how the new approach can result in the granting of an injunction where one would not previously have been granted.

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Restrictive covenant – building scheme

If there is a ‘building scheme’ (sometimes called a ‘scheme of development’) then restrictive covenants affecting individual plots will be mutually enforceable by the plot owners. The requirements are:
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‘Reasonable endeavours’ – drafting

   A party to a development agreement might have a qualified obligation to take certain steps (eg apply for planning permission and then appeal any refusal). Needless to say, it is important to be crystal clear about the scope of such a qualified obligation. Thus, it can often be helpful to be more specific. For instance:

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Parking – signs effective

The CA has come up with a common-sense approach when deciding that signs are sufficient to stop someone acquiring a parking easement.

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Village green – land by school?

Could land beside a school be registered as a town or village green?

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Telecoms Code – reform?

As we have noted on several occasions, the Electronic Communications Code is a stand-alone piece of legislation which does not sit comfortably with the commercial lease provisions of LTA 1954.

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Commons – unregistered rights?

There has been an important decision for owners of common land, and those who claim to have unregistered rights over such common land. In essence, those unregistered rights are no longer registerable.

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Rights of light – s237 TCPA 1990

One way of overriding rights of light (or any other easement) is to use s237 TCPA 1990, provided the development is of importance to the community (eg it will lead to rent regeneration, or provide much needed commercial or residential space).

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Japanese knotweed – antisocial behaviour

Even a very small amount of Japanese knotweed can cause major damage by breaking through tarmac and concrete. Remediation can be long-term and difficult. Needless to say, lenders are reluctant to lend.
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