Real Estate Development Yule Blog - 8 jolly judgments?

2022 has been another busy year for the courts and tribunals in England and Wales, with 2023 shaping up to continue the trend. We have selected eight cases of interest for you and, just like Scrooge in A Christmas Carol, we take you on a journey of past, present and future. We'll let you decide whether the judgments are "Holly Jolly" or "Bah Humbug"!

Construction

1. The one that provided clarity on collateral warranties
   Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP [2022] EWCA Civ 823
   By a majority decision the Court of Appeal held that a collateral warranty can be a construction contract for the purposes of section 104 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996), providing a statutory right to adjudicate. It will still depend on the wording of the particular warranty – a warranty that provides a guarantee or simple promise about a past and static state of affairs (eg a product guarantee) is not likely to qualify – but a warranty that refers to ongoing obligations, such as the contractor, sub-contractor or consultant carrying out and continuing to carry out construction operations or services (as collateral warranties typically do) could be a construction contract for the purposes of the HGCRA 1996 allowing the parties to such a warranty to adjudicate. This may be of benefit to recipients of collateral warranties as adjudication can provide a quicker and less costly method of dispute resolution.

Planning

Three Supreme Court cases

2. The one that is past …
   Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30
   Judgment was passed down last month in this significant Supreme Court decision on overlapping permissions. The decision has profound consequences for the use of “drop-in” applications in multi-phase developments authorised by a single masterplan planning permission. We now have confirmation that implementing a subsequent planning permission for physically incompatible development will cause any further development under an existing permission to be unlawful, although it will not invalidate development already carried out. Our blog summarises key takeaways for landowners and developers.
3. The one that is present …
   DB Symmetry Ltd and another v Swindon Borough Council
   We're waiting to hear from the Supreme Court in this appeal against the Court of Appeal's decision in DB Symmetry Ltd v Swindon Borough Council & Anor [2020] EWCA Civ 1331. The Supreme Court is considering whether a developer can lawfully be required by a planning condition to dedicate land for public purposes without being paid compensation, and what the legal effect of such a condition would be. Section 106 agreements currently provide an alternative route for securing such commitments, but the future of section 106 is uncertain – with the arrival of the new Infrastructure Levy in the Levelling Up and Regeneration Bill, the government intends to reduce the role of section 106 for less complex developments, although it remains to be seen how this will play out in practice.
4. The one that is yet to come
   R (Finch) v Surrey County Council and others
   Developers will be keen to hear what the Supreme Court has to say about the degree of connection between development projects and downstream emissions. This appeal is against the February 2020 decision of the Court of Appeal in R (Finch) v Surrey County Council and others [2022] EWCA Civ 187, a case concerning a crude oil extraction project. The project was to extract the oil, not refine it. The Court of Appeal held, by majority, that the council had acted lawfully in not requiring the EIA to assess the impacts of greenhouse gas emissions of the oil's ultimate use as fuel once refined. However, in a dissenting judgment LJ Moyland held that "scope 3" emissions should have been assessed. A date has not yet been set for this hearing, so we could be waiting some time for the decision.

Real Estate

5. The one that ended Covid defences for non-payment of rent
   Bank of New York Mellon (International) Ltd v Cine-UK Ltd; London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and others [2022] EWCA Civ 1021
   The Court of Appeal upheld the grant of summary judgments to commercial landlords for payment of accrued rent in cases where the premises had to be closed for extended periods due to Covid restrictions. The tenants had deployed various arguments, including that implied terms should be read into the leases so that the payment obligations were suspended during those periods. They also argued that the mandatory closures amounted to a "failure of basis“. However, the High Court was unconvinced and the matter was put to rest by the Court of Appeal in July 2022. You can read our previous blogs on these cases here.
6. The one that settled
   Sirosa Properties Establishment v The Prudential Assurance Company
   Property practitioners and developers alike were keeping a keen eye on this one. Sirosa Properties sought injunctive relief for interference with their rights of light. Neighbouring developers, The Prudential Assurance Company Limited, denied the interference and sought to challenge the Waldram method of measuring light infringement by focusing on the relevance of reflected light and modern use of electric lighting. It was hoped that the case would modernise the assessment of light infringement, which may help to reduce complexity and delay in reaching settlements outside of the courtroom. However, the parties reached a confidential settlement themselves on the first day of trial so we'll have to wait another day for the courts to consider whether Waldram remains a worthy tool....
7. The one that opened another structural gap in the Telecoms Code
   Vodafone Limited v Gencomp (No.7) Limited and A P Wireless II (UK) Limited (LC-2021-613)
   Not even two months had passed after the Supreme Court finally closed a gaping hole in the Electronic Communications Code 2017 which shut certain operators in-situ out of the Code (Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18), when the Upper Tribunal (Lands Chamber) identified a new structural defect.
   The problem: landowners with intermediate lease structures in place are effectively shut out of the termination and removal procedures under the Code, which can sterilise developments. Further information can be found on our previous blog here. Permission to appeal to the Court of Appeal has been granted and the case should be heard by October 2023.
8. The one that we're waiting for
   Fearn & Ors v The Board of Trustees of the Tate Gallery
   In December 2021, the Supreme Court heard an appeal from owners of luxury residential apartments in Neo Bankside. The viewing platform/ walkway at the neighbouring Tate Modern gallery led to overlooking into their homes which, they argued, amounted to a private nuisance. They also alleged that it infringed their privacy rights conferred by Article 8 of the European Convention on Human Rights and requested an injunction to close the offending part of the platform/ walkway. The High Court and the Court of Appeal both rejected the arguments. Judgment in the Supreme Court will arrive in due course. Whatever the outcome, it will be ground-breaking for the law of nuisance and the protection of privacy (or lack thereof).

Links to the previous posts in our Yule Blog series are below – check back tomorrow for our 7^th day's post!

HSF Real Estate Development Yule Blog 2022 - previous posts:

• 9 keys to MEES
• 10 percent more
• 11 Metre Buildings
• 12 points to ponder 

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