Who is responsible for overgrown vegetation on land and at a junction?

NO DUTY OF CARE OWED BY LANDOWNERS ADJOINING A HIGHWAY IN RELATION TO AN OBSTRUCTION AFFECTING VISIBILITY


The Court of Appeal recently handed down a decision that a local authority did not owe users of the highway a duty of care in respect of overgrowing vegetation on land at a junction, which affected visibility when emerging from a minor to major road.

The brief facts were that a car driver had struck a cyclist as the car emerged from a minor road to the cyclist’s left. The cyclist sustained serious injuries and although the car driver denied responsibility for the accident and alleged that the cyclist was to some degree responsible, the car driver sought a contribution from the relevant local authority arguing that his visibility at the junction was severely restricted by the presence of vegetation.

However, the Court found that the principle of liability for negligence in creating dangers to users of the highway related only to dangers actually on the highway, and not to possible dangers on land next to the highway.

The Court found other cases referred to by the parties did not apply to the particular circumstances of this case, and therefore were required to reach a decision by developing the law using already established principles.

The Court found that it would not be just or reasonable to impose a duty in this particular situation. The Court accepted the submission made by the local authority that the imposition of the duty on owners of land to ensure that vegetation in their fields and gardens did not affect sight lines on neighbouring highways would be very onerous and have far reaching consequences.

Farmers would need to consider visibility on the highway when deciding where to plant crops, hedges and trees and when to harvest, prune or fell them.

Similar issues would arise in relation to, for example, the planting of shrubs, hedges or trees in urban or suburban gardens.

Furthermore, whilst the present case concerned vegetation, the principle could extend to the erection of buildings, fences and other structures that might affect visibility on the highway.

Another important consideration for the Court was that the road network is imperfect and drivers must take it as they find it.

The Court was also concerned that if a duty of care was found to exist it might lead to an increase in claims by drivers’ insurers for contributions from owners of land adjacent to the highway in cases where visibility was an issue, and a growth in the business of expert advice provided to land owners on the implications of vegetation and structures on their land for visibility on the adjoining road network. The Court felt those would be potentially serious and costly consequences for very little practical gain.

The upshot of this decision is the court’s reluctance to extend the duty that would have far reaching consequences for local authorities and land owners alike.

Sumner –v- Colbourne –v- Denbighshire County Council (1) The Welsh Ministers (2) – [2018] EWCA CIV1006

 

Meet Claire Webb, Solicitor in our Family Care Team

I studied Law at Cardiff University and qualified as a Solicitor in 2010. I achieved The Law Society’s Children Law Accreditation (a member of the Law Society’s Children Panel) in 2014.

Since 2010, I have worked in both private practice and as a Solicitor in-house for a Local Authority. I am an experienced Solicitor and provide advice, assistance and representation to clients in cases involving a variety of children law matters:

Public Law Children Act matters – where the Local Authority have started Court Proceedings or have initiated the Child Protection or Pre-Proceedings Process; and

Private Law Children Act matters – which concern where and with whom a child is to live or who a child is to spend time with as well as other disputes that arise between parents and family members relating to key decisions concerning a child.

I act for parents, grand-parents or the child(ren) either separately or through their Children’s Guardian. I am frequently instructed in complex cases involving suspected non-accidental injury, cases where clients lack capacity and require the Official Solicitor or a Litigation Friend and cases involving international or jurisdictional issues.

I provide clear and concise legal advice at what I appreciate and understand is a difficult and emotional time in people’s lives.

If you would like to speak to me or need some advice please contact me on 01793 532363 ext 296 or e-mail claire.webb@bevirs-law.co.uk

 

CLASS Q JUST GOT BETTER – Hugh Ellins

CLASS Q JUST GOT BETTER

Presumably, as part of the Government’s concerns about the housing shortage, changes have been made to the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2008 SI2018/343 Class Q in respect of former agricultural buildings and barns being converted to dwellings.

Essentially, the number of dwellinghouses that can now be constructed to replace agricultural buildings and barns has been increased so that there can be up to:

(a) 3 larger dwellinghouses with accumulative floor-space of no more than 465 square metres;

(b) 5 smaller dwellinghouses each with no more than 100 square metres.

This relaxation has to be considered with any development carried out under the old Class Q so that both of the following must be fulfilled:

(a) Larger dwellinghouses must not exceed more than 465 square metres of floor-space;

(b) The total number of separate dwellinghouses must not exceed 5.

What is a larger and a smaller dwellinghouse?

A larger dwellinghouse is one with accumulative floor-space of no more than 465 square metres.

A smaller dwellinghouse is one which is no larger than 100 square metres.

The good news continues in that under the new Class Q there is a greater degree to ‘mix and match’ than under the previous regime. This means that there is a greater ability to mix the housing sizes in the development.

Whilst all this is good news for those wanting to undertake barn conversions or to develop redundant buildings, there are still hurdles to overcome. Not the least hurdle is the reluctance of many local Planning Authorities to see development under Class Q. This is seen as a method of circumventing the ordinary planning process which can potentially result in planning permissions being granted for development in areas which the local Planning Authority does not want to be seen to be developed. For example, otherwise open countryside.

Another hurdle is the suitability of the barn or redundant farm building for conversion. On this and the other aspects of the Class Q application for development, expert advice should always be sought and the application properly presented to increase the likelihood of a successful application.

However, for those who think that using redundant farm buildings for dwellings is a way of putting life back into rural areas the new class is good news.

Hugh Ellins

Zoe Tibbles appointed an Associate

The Partners at Bevirs are pleased to announce that Zoe Tibbles has been appointed an Associate of the Firm.

Sonyia Woolnough, Head of Commercial, and a Partner says “Zoe is a considerable asset to the Commercial Team at Bevirs. In addition to commercial property work she specialises in Pension Property and Lease Extension work all of which she does with great energy and enthusiasm. Her promotion is well deserved”

Zoe is a Commercial Property solicitor and joined Bevirs in December 2016 after working for 10 years with a law firm, based in the South West. Zoe deals with a variety of complex transaction and has particular expertise in Pension Property acquisitions  financing and  Leases

Zoe’s clients include pension providers, commercial investors and developers, landlords and tenants, banks and business operators.

Zoe comments “It is fantastic to be able to continue my work as an Associate within such a knowledgeable and client focused team.  As a working mum to a young child, I am particularly pleased to work in a firm which recognises and supports family life alongside a fulfilling career.”

Congratulations Zoe, from all at Bevirs.

 

 

 

Commercial Team Lawyer Vacancy

Commercial Team Lawyer Vacancy

We are very proud of the growth and success of our current Commercial Team and want to expand by recruiting   additional full time commercial solicitors or legal executives  to be based in our Royal Wootton Bassett Office who will be just as enthusiastic  committed  and excited about what we do  as the rest of the team.

The successful candidates will

  • (Property work) be a Solicitor or Legal Executive with experience of and able to manage their own case load   in commercial property sales and purchases, including contracts, title reports, leases agreements for lease for landlords and/or tenants as well as dealing with applications for consent to assign, deeds of variation, lease renewals, surrenders, licences to alter and underleases.
  • (Business work) be a Solicitor or Legal Executive  experienced in and able to manage their own case load in several of the following   business sales and purchases, shareholders agreements, commercial and consumer contracts.
  • Bring something extra to the team such as an expertise or desire to acquire an expertise in another specialist area (this could be either property work or business work related)
  • Be excellent at managing themselves administratively
  • Be enthusiastic and willing to engage with marketing and promotion of the  Commercial Team.

Bevirs has an outstanding reputation and long established (1885) offices in Swindon, Royal Wootton Bassett and Calne. Whilst we are proud of our history we are also forward thinking and the commercial team wants to be in a position to serve the businesses and landowners of tomorrow as well as today.

If you would like   the opportunity to work in lovely surroundings being part of an enthusiastic dedicated team we look forward to hearing from you. For further information or an informal chat please contact Sonyia Woolnough on 01793 848900.

To apply please forward your CV and covering letter to Mrs Sonyia Woolnough 141 High Street, Royal Wootton Bassett SN4 7AZ or sonyia.woolnough@bevirs.co.uk.

The closing deadline for applications is 1st June 2018.

 

Life in Law, by Michelle Bowyer, Family Team

A life in Law:

6th June 1996: my first day at work in a Solicitors office. A sunny day in Portsmouth and I recall my new colleagues looking hot, sweaty and over-worked. I was fresh faced and bursting with excitement at securing a role in law having spent an unimaginative year in pension administration as a stop-gap following my graduation from university. I was a trainee legal executive and I faced a baptism of fire. I was in a busy crime department and I was soon attending court, visiting clients in prison, preparing statements and analysing evidence. If the civil team needed someone to undertake an oral examination at court, I was sent jogging over with the reminder that one of the Partners had once reduced a defendant to tears: this had become folklore in the office and the pressure was on to be as equally as robust. I never did make anyone cry in those sessions and it wasn’t until my appearance in the family team later that year that I witnessed tears from a client. I still witness tears on a frequent basis almost 22 years later. I never forget that in family law, we are dealing with people’s lives. I meet the loveliest of people facing one of the most challenging times anyone can face: family breakdown. My role is to guide them through the process, advise them in relation to divorce, the financial consequences, arrangements for their children and if necessary, protection from harm. Dividing one home between 2 can be a challenge; helping parents agree what is best for their children when communication and trust has broken down between them can be a challenge. Assuring an abused party that the piece of paper called an injunction will keep them safe; can be a challenge.

Save for that forgettable year in pension admin and a year on maternity leave; this is the only job I’ve had. I’m no longer a trainee legal executive: I continued to study whilst working and qualified as a legal executive in 2000 and as a solicitor in 2005. However, the job remains the same even with the numerous changes in law and legal precedent over the past 2 decades: People’s lives. They place their trust in us to guide them through their darkest days and I take huge satisfaction in doing just that and in seeing the fog of desperation lift. Occasionally, a client will touch base with me long after their case and it is always a delight to discover that contrary to their belief at date of us meeting; there is life after family breakdown. If handled sensitively, with care, compassion and in a conciliatory fashion; this can be achieved with the fewest of tears and with hope not just for my client’s future but for their children and wider families, all of whom can suffer following the breakdown of a relationship.

 

It helps to be clear

Putting things in writing can help to avoid misunderstandings, bad feeling and litigation.

A recent case (Habberfield v Habberfield) highlighted the importance of being clear when arranging your affairs.

The case involved an application by a daughter claiming a family farm, owned by her deceased father, or (failing that) a sum of money. The claim was brought against her mother using what is called “proprietary estoppel” or, alternatively, under the Inheritance (Provision for Family and Dependants) Act 1975. Under that Act, certain family members and dependants can make a claim against the estate of someone who has died if they will not otherwise have reasonable provision from the estate.

The daughter said that she had devoted her entire working life to the farm on the assurance that she would eventually take it over when her father retired and that she would receive the freehold at some unspecified later date. Following a dispute in 2013, however, she had left the farm. When her father died, he left his interest in the property to his wife. His wife disputed the daughter’s claim.

The Judge decided that many of the promises which the daughter said had been made were ambiguous. However, he also decided that the assurances had led to the daughter acting to her own detriment (working long hours at the farm for low pay and few holidays when she could instead have built up her own business).

He awarded the daughter the sum of £1.17m; if that wasn’t paid, it was likely that a sale of the family farm would be required.

Having decided this, the Judge did not feel it necessary to go on to make a decision under the Inheritance Act in this particular instance. If the first part of the claim had failed, however, he would no doubt have considered the Act.

Some useful lessons can be drawn from this case:

1. Be careful what you promise – particularly where someone relies on the promise to their own detriment;

2. Set out significant agreements in writing, so everybody knows what has been agreed;

3. On the matter of Wills: Wills can be challenged for various reasons. When making a Will, it is important to consider your financial obligations and to make reasonable financial provision for those close to you.

A good reason for making a Will – and, indeed, for having proper, written agreements about business and property during your lifetime – is that you can make your intentions clear. One of the problems in this case was the lack of clarity about what the man who had died (and indeed, his wife) had intended or, indeed, what they had agreed with their daughter.

Our Commercial Department can advise you regarding partnership agreements and other matters relating to business. Our Homemove department can advise you regarding property if you are considering transferring land and/or setting out in writing who is entitled to the proceeds of sale of property. Our Wills and Estates Department can advise you regarding Wills and dealing with the estate of someone who has died. And if you need advice about a possible claim against the estate of someone who has died, please contact Peter Shah in our Litigation/Dispute Resolution department.

LANDOWNERS BEWARE – TELECOMMUNICATIONS EQUIPMENT

Generally, landowners think that telecommunication equipment is “a nice little earner”. The Operator takes a small area of land, pays over an annual rent – which is periodically reviewed upwards – and all that with little, or no, inconvenience. Whilst that is right, there have always been traps for the unwary. The increase in telecommunications is considered to be beneficial to the economy and therefore the legislation and code are beneficial to the Operator.

The new Electronic Communication Code brought into effect under the Digital Economy Act 2017 has made the position of the Operator stronger and financially more advantageous.

The principal changes are that:

  1. The Operator will now be able to assign its interest in the equipment without restriction albeit subject to giving a guarantee similar to an AGA.
  2. The right to share equipment without paying an increase in the rent.
  3. The right to upgrade the equipment without paying an increase in the rent.
  4. The method of calculating the rent has been altered in a way which should lead to lower rents.

The new Code only affects new arrangements so those who already have arrangements, tenancies or licences may well try to keep those going for as long as possible. The Legislators have thought of that and have incorporated transitional provisions to make the new Code applicable to old tenancies or licences albeit with certain modifications.

Given the advantages to the Code Operator under the new Code, can a landowner just refuse to allow new telecommunications equipment to be placed on his land? Regretfully, if the Operator wants to place telecommunications equipment on land, and if there is no agreement, it can make an application to the Court who will, in certain specific circumstance, approve the necessary Order permitting the equipment to be installed on terms it decides.

Because of the newness of the provisions there is no guidance as to how the Courts will react but generally a negotiated settlement is preferable.

The blog does not deal with the details of the new Code. Because of the intricacies of the new Code, any landowner should seek advice before entering into an arrangement with a telecommunications operator.

If you require any further information please contact me on:

Telephone:          01793 848900

Email:                      hugh.ellins@bevirs-law.co.uk

The Right to Extend the Lease of your Flat

This week I was chatting with my colleague, Zoe Tibbles, who has a specialisation in the extension of residential leases. We were discussing the timing of the lessee’s request for an extension of its lease as this can substantially affect the premium payable.

Although a long residential lease decreases in value year by year, it does not normally worry the leaseholder. What is the difference in a lease which, say, has 199 years left to run and one with 198 years? Very little. However, if a lease gets to a point where there is, say, only 95 years left to run then its value can be substantially reduced. That is because many potential purchasers view askance a term that may run out in their lifetimes. Added to that is the reluctance of many mortgage providers to lend where the lease has 80 years or fewer left to run. To cover this problem there is legislation (The Leasehold Reform Housing and Urban Development Act 1993) which provides that most lessees of flats let on a long lease at a low rent can apply to extend their leases.

There is, of course, a cost for this which has to be paid to the freeholder. What the freeholder is entitled to receive is the loss of value of its interest in the property. Not surprisingly, the closer to the expiry of the original term the request is made the more that has to be paid to the freeholder. Some examples are set out below.

Assume a lease with a value of £200,000 and a ground rent of £150.

With 199 years left to run, the freeholder is likely to receive £3,000.

With 80 years left to run, the freeholder is likely to receive £7,000 to £8,000.

With 70 years left to run, the freeholder is likely to receive £13,000.

With 51 years left to run, the freeholder is likely to receive £33,000.

The examples are not exact because the actual figure will be influenced by location and whether the ground rent payable increases.

The break point where the amount payable begins substantially to increase exponentially is where there is only 80 years left to run. That is because the freeholder is then entitled to add to the amount payable ‘marriage value’. The amount actually payable is usually agreed by the parties relying on the formula provided by the legislation. If the negotiated route does not work the Leasehold Reform Housing and Urban Development Act 1993 provides a framework as to how the figure is decided. Ultimately, if the parties cannot agree the figure is as decided by the First Tier Property Tribunal.

A note of caution is that the right to extend the lease does not apply to all residential property and there are various technical steps that need to be followed. You do need the advice of qualified professionals – being valuers and solicitors such as Zoe.

If you want more information then please contact Zoe either on the telephone on 01793 848900 or by email: zoe.tibbles@bevirs-law.co.uk

Parental alienation: CAFCASS crackdown

Parental alienation:

https://www.theguardian.com/society/2017/nov/17/parental-alienation-divorce-custody-crackdown-cafcass?CMP=share_btn_link

This is an interesting issue relating to the impact of one parent alienating their children against the other parent. This has caused quite a media storm and rightly so in my opinion as the ground-breaking response by CAFCASS may seem severe to one side of this debate; but heaven sent to those parents who have “lost” their children due to their ex partners or spouses successfully alienating them.

The court has always had the power under the Children Act 1989 to vary the place of residence for a child if it felt that one parent was more capable of promoting contact with the other but this is the first time CAFCASS have committed to positively promoting such outcome to the court in the event that it makes findings of parental alienation. And it goes one step further by suggesting that not only should there be a change of residence but that the “offending” parent may face the consequence of limited contact or no contact with their child if they fail to address their behaviour.

I have seen too many cases of parental alienation during my legal career and this is the most positive step I have seen to address this issue which can often involve only subtle manipulation of a child but can have such a devastating impact upon family life for both the child and the parent who has been alienated.

It is important to note that recommendations made by CAFCASS to the court within Children Act proceedings are not binding but they are very much persuasive as their report is often the only impartial evidence viewed by the Judge. Therefore, this new approach being trialled by CAFCASS should impact upon the decisions we see in the family court.

If you require advice relating to Children Act proceedings or any other family related matter…etc

If you require advice relating to Children Act proceedings or any other family related matter please contact us on 01793 532363.