Property Notepad - August
1. Extrinsic evidence admissible for ambiguous conveyance plans
When faced with a boundary dispute arising from ambiguous conveyance plans, extrinsic evidence concerning the features of the land can be the deciding factor, regardless of the intentions of the parties.
The 1999 House of Lords case Alan Wibberley Building Ltd v Insley established that the first step in resolving a boundary dispute would be to examine (a) the verbal description in the transfer deed together with the accompanying plan and (b) any previous title deeds which might give more detail. Where those sources remain insufficient they will generally need to be supplemented by other evidence, such as the physical features of the land at the time the document was executed.
In Pennock and another v Hodgson [2010], the appellant argued that the court in first instance should not have relied upon extrinsic evidence, which it said should have been inadmissible. The plan in question, whilst based on an Ordnance Survey map, crucially did not show the location of fencing which ran alongside a stream (which was featured). The appellant said that the court should not have looked beyond the transfer deed itself, and there was no ambiguity in the presence or position of the stream constituting a boundary feature in the plan, and that should form the boundary line rather than the fence.
The Court of Appeal dismissed this argument. Where a deed does not define precise or exact boundaries, these have to be established by other evidence. Looking at the actual and physical condition of the land at the time of the transaction is a valid way of construing the conveyance in the light of the circumstances in which it was made. Extrinsic evidence could be rejected if it contradicts the terms of a conveyance.
This case is a reminder that even where a conveyance plan seems clear, an in-depth examination of it coupled with a site inspection may reveal inconsistencies, particularly where a property is bounded by hedges, streams or other natural features.
2. The meaning of using "all reasonable but commercially prudent endeavours"
Many commercial contracts contain obligations in which one party is required to use ‘reasonable' or ‘best' endeavours to achieve something. "All reasonable endeavours" is commonly understood to be somewhere in between the two of these. What this means in practice will often hinge on the commercial context.
The 2010 case of CPC Group Limited ("CPC") v Qatari Diar Real Estate Investment Company ("QD") concerned the potential redevelopment of the Chelsea Barracks site and the much-publicised intervention of the Prince of Wales, which led to a planning application being withdrawn. Under a sale and purchase agreement QD owed CPC various obligations including one to use ‘all reasonable but commercially prudent endeavours'. The court was asked to consider whether, by withdrawing the planning application, QD was in breach of this obligation to procure planning permission. The court found that QD's conduct did not amount to such a breach.
CPC had argued that an obligation to use "all reasonable endeavours" should be equated with an obligation to use "best endeavours", so that the relevant party must, if necessary, defer its own financial interests in order to obtain the desired result. The judge found that the obligation to use "all reasonable endeavours" does not always require the party to sacrifice its commercial interests. The situation was clear in this case as the contract effectively stated that QD was not to be required to sacrifice by the very inclusion of the additional words "but commercially prudent" in the clause. The case is a useful review of recent case law on endeavours obligations, and confirms that the inclusion of words such as "but commercially prudent", can be helpful in clarifying the intention of the parties.
3. No occupier's liability for council because injured visitor was intoxicated
In Harvey (Jonathan) v Plymouth City Council [2010] the Court of Appeal overturned a ruling that a local council had been liable under the Occupiers' Liability Act 1957 ("OLA"). The claimant, Mr Harvey, had run on to the council's land and tripped over a broken chain link fence and fallen onto a car park five metres below. He was found to have been contributorily negligent as he had been drinking. Harvey was deemed to have had an implied permission (or ‘licence') to be on the land for general recreational purposes, but this was considered not to extend to running across the land in the dark whilst intoxicated.
Under the OLA, an occupier of land owes a duty of care to visitors. The duty is to take such care, as in all the circumstances is reasonable, to see that the visitor will be reasonably safe in using the land for the purposes for which the visitor is invited or permitted by the occupier to be there. The circumstances include the degree of care and want of care that would ordinarily be looked for in a visitor: for example, an occupier must be prepared for children to be less careful than adults.
A land owner may, by their conduct, confer an implied licence for someone to be on their land. Contrast this with the 1952 case of Edwards v Railway Executive, wherein a boy was injured on a railway line: he was not a licensee because he had been repeatedly warned not to go onto the land.
There is also a distinction between an implied licence for general activities and an implied licence for a particular activity. In the House of Lords case Tomlinson v Congleton Borough Council Lord Hoffmann said "when you invite a person into your house to use the staircase, you do not invite him to slide down the banisters." He commented that those who come onto land without invitation or permission "should not ordinarily be able to force duties upon unwilling hosts". Owners of open land, industrial sites and development sites should be aware of their statutory duty of care as the decision does not indicate a lowering of standards. They should consider conducting periodic reviews of the land, the condition it is in and who is using it for what purposes, and whether there is a need to introduce, or increase, warning notices to restrict visitors or their activities.
4. Building Regulations - changes to the energy efficiency requirements of new homes
Significant changes to the energy efficiency provisions of the Building Regulations are due to come into effect on 1st October 2010. Earlier this year, the government confirmed that its intention was still to introduce the changes in October, but they could be delayed by a further six months. If the October deadline is missed, they will be delayed until April 2011.
The key change will be to require a 25% energy efficiency improvement for each new home relative to 2006 standards; it will not suffice for there to be an overall 25% improvement across the whole development. This is in addition to a number of more specific changes, such as increased air pressure testing requirements, a new system for calculating CO2 emissions (plus a revised target on these), assumed party wall heat loss of zero (such that insulation of party walls is required in addition to the 25% improvement), a minimum of 75% low energy light bulbs, and some changes to the reasonable limits for the building fabric and services performance specifications.
No new dwellings will be exempt from the new requirements unless they fall within the transitional provisions.
Assuming the changes come into effect on 1 October, these provide that the energy efficiency changes will not apply:
A. To building work started prior to 1st October 2010, in accordance with a building notice, an initial notice, a plans certificate, an amendment notice, or a public body's notice is given ("a Notice") or full plans deposited with a local authority given prior to 1 October 2010;
B. Where full plans are not required to be deposited, but a build contract was entered into before 1 October 2010, provided that the works started before 1 October 2011;
C. Where full plans are deposited and approved or a Notice is given prior to 1 October 2010 and the work is carried out in accordance with such Notice or plans, and building works are started before 1st October 2011;
D. Where an initial notice was given before 1st October 2010 but is varied by an amendment notice given after that date, provided the works are started before 1st October 2011. The sooner developers can submit their applications for building regulations approval for future developments the better in order to take advantage of the transitional provisions.
This Notepad is offered on the basis that it is a general guide only and not a substitute for legal advice. Laytons cannot accept any responsibility for any liabilities of any kind incurred in reliance on this Notepad.
If you wish to copy this Notepad please do so, but please acknowledge its source. For specific advice on these issues, please contact your client partner or one of the team at the addresses set out below.
Contact: Charles Hodder email charles.hodder@laytons.com
Contact: Neil Bucknell email neil.bucknell@laytons.com
Contact: Mark Gillies email mark.gillies@laytons.com
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