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Thursday, 19 July 2012

Gone Fishing...

I had to remind myself recently of the law relating to fishing rights.

Anyone can fish in the sea and tidal waters, provided they have access.

But with inland rivers and other waterways the law can be quite complex and derives from ancient manorial laws of sporting rights, or “profits a prendre”.

For instance, the owner of land alongside a river – the riparian owner – is usually presumed to own the river bed up to the mid-point of the stream if the opposite bank is owned by someone else.

This would usually give you the right to fish from your river bank as well.

Fishing rights however can be transferred to someone else (sold usually) – and can therefore exist independently of the ownership of the land.

Fishing rights can be exclusive, or they can be owned in common with the owner of the land.

If someone else owns the fishing rights, they automatically have a right to come on to your land and fish.

Not only that, in the absence of any evidence to the contrary, the law presumes that the owner of the fishery also includes ownership the bed of the river or stream – so the usual presumption of ownership of the river bed is overturned.

Told you it was complicated – and I haven’t even got on to incorporeal and corporeal profits and whether they exist in gross or not, acquiring prescriptive rights, close seasons, rod licences etc etc

Don’t worry, I’m not going to either...for this is just a long-winded way of saying I’ll be taking a break from Digging the Dirt for a few weeks.

Enjoy the summer, when it arrives, and of course the games we can’t advertise – in spite of my typically British carping (those pesky fish again), I’m sure they’ll be a treat and hopefully a triumph!

Wednesday, 18 July 2012

Olympian Shock & Awe

Last week, the residents of Fred Wigg Tower, a 15-storey block in Leytonstone, failed in their attempt to overturn, by judicial review, the Secretary of State’s decision to house a missile defence system on top of their building to protect Olympic Park from terrorist threats.

I’m a little late with this news but the UK Human Rights Blog provides an interesting legal analysis of these surreal goings-on.

The applicants’ argument that the missile installation posed a threat to their building failed because the judge (agreeing with the Secretary of State) considered the risk to be negligible and the decision proportionate and justified under the UK’s duty under Article 2 of the European Convention on Human Rights (ECHR) to protect human life at Olympic Park (even if the interference with the residents’ Article 8 rights was considered substantial, which it wasn’t).

ECHR Article 8 deals with the right to private and family life.

The BBC reported the residents couldn't afford to appeal the decision.

Thanks too to the UK Human Rights Blog for putting our minds at rest by quoting the description given to the court of how this bit of tower block heavy weaponry fits into the bigger picture:

“The Plan is necessarily ‘multi-layered’ to ensure that the Olympic Park is protected by concentric lines of defence. This will include the following: (a) temporarily restricted airspace over London for the period of the Games to be in place for the opening of the Olympic Village (mid July); (b) Typhoon fighter jets operating from RAF Northolt; (c) Helicopters operating from HMS OCEAN moored on the Thames at Greenwich and elsewhere; (d) a network of air observers and radars; (e) four Rapiers sites (Blackheath, Oxleas Meadows, Barn Hill, William Girling Reservoir) providing the first part of the Ground Based Air Defence (“GBAD”) system in a ring within 7-14 km of the Park; and (f) two High Velocity Missile (“HVM”) sites overlooking the Park and covering the airspace above and around it forming the inner part of the GBAD system.”

Welcome to dystopia.

What with all this shock & awe, assiduous intellectual property protection and yesterday’s Buckles monstering at the select committee I think I’ll go back to watching Twenty Twelve for light relief.

They couldn’t make it up.

UPDATE 13/8/12

Memo to self: Must learn to be more optimistic! 

Photo from UKHR Blog

Monday, 16 July 2012

Stopping Up & Diverting Highways – Government Launches Consultation

The government is consulting on how to speed up the process for obtaining stopping up orders.

Stopping up orders authorise the stopping up or diversion of a highway where it’s no longer needed or a change is required to enable development to proceed.

The grant of planning permission to carry out development does not contain consent to stop up the public highway, so a developer might need to obtain a stopping up order to sit alongside the planning permission.

Developers with planning permission may have to wait a further 13 weeks before getting a decision on a stopping up application, and considerably longer where a local inquiry is required to consider objections.

The government is committed to speeding up and simplifying the application process for non-planning consents following the 2010 Penfold Review.

Applications to stop up or divert a local highway are made direct to the Secretary of State for Transport, although in London responsibility is devolved to the London Boroughs, with the Mayor of London determining whether or not a public inquiry is held.

The consultation looks at various options for speeding up the process (no change is being advocated for London).

The proposals would allow stopping up and diversion orders to be made in parallel with planning applications.

The challenge will be to devise a speedier system which at the same time takes proper account of objections – one of the options is including a statutory time limit for considering objections.

The consultation ends on 24 August 2012.

UPDATE 25/8/12

 Here is the response to the consultation from the British Property Federation.

Tuesday, 10 July 2012

On Location - What if Someone Wants to Use Your Property to Make a Film?

What should you think about if someone wants to use your property as a film location?

Property owners sometimes get approached by filmmakers or location managers.

They must ask your permission before using your land.

It's a good idea to have a location agreement put in place before letting them film – no matter how flattered or star-struck you might be.

The BFI, the Guild of Location Managers and the BBC film network all give guidance to filmmakers on scouting for locations and on what they should be looking for in a location agreement – for example:

·         Allowing the filmmakers not only to film in the location but also granting them the right to rehearse there and take stills for publicity.

·         Giving the filmmakers the right to call the location by a different name if they want to do so.

·         Granting the filmmakers the right to incorporate scenes filmed at the location in their film and the right to exploit the film in any medium throughout the world – the filmmakers will want to own all the intellectual property rights arising from their use of your premises.

·         Rights for the design team to make additions and alterations in and to the premises (possibly interior and exterior) - as owner you will want a corresponding obligation for the filmmaker, at the end of filming, to put the property back into the condition they found it (see below).

As a property owner, you may be happy to go along with these requests, but inevitably there are risks involved in letting someone film on your land.

You’ll want to ensure the location agreement contains certain protections for you and your property and that you’re paid properly for the use of your land.

Here are some points to think about:

·         The fees payable by the filmmakers (which will be negotiable) – whether VAT is payable – whether there should be a cancellation fee, for example if the venue is frequently used.

·         The duration of the agreement.

·         The dates of filming or period of notice to be given in advance of each filming date and the permitted hours of filming.

·         If the filmmakers want to be able to make alterations to the premises, agree a scope of works in advance or require your consent to be obtained; also agree a schedule of condition with photographs to be annexed to the agreement and require the filmmakers to reinstate the works and put the premises back into the condition they found them at the end of filming. Alternatively, prohibit alterations altogether.

·         There may be planning implications and the filmmakers should be responsible for obtaining all relevant permits and licences at their expense and indemnify you for any breach.

·         Ensure the filmmakers pay for all utilities used at the premises (such as gas, water, electricity, telephones).

·         Control the conduct of people using the property.

·         Check with your property’s insurers and make sure the filmmakers are fully insured and include obligations to indemnify you for all damage to property, death and personal injury.

·         Termination rights – whether the agreement can be terminated by either party and, if so, what notice must be given – and termination for breach.

·         Think about whether you want your property (and you) to be mentioned in the film credits - and provide for this in the agreement.

When filmmakers film in public places or municipal buildings they need permission from the police and the relevant local authority (which is likely to charge a fee) - the only exception to this is filming on a pavement, provided they don’t cause an obstruction.

Meanwhile, try not to let the fame go to your head!

Photo by mazpho.to via flickr

Friday, 6 July 2012

High Court Backs Empty Rates Avoidance

The High Court has ruled in favour of empty rates avoidance.

Owners of empty commercial properties do not have to pay business rates for the first 3 months the property is empty (6 months for industrial and warehouse properties).

After that period, business rates become payable again in full.

One way businesses try to mitigate this liability is by “intermittent use”.

If the business occupies or lets the property out for at least 6 weeks, it will get another rates free period of 3 months (or 6 months, depending on what type of property it is) when the property next becomes empty.

This process can be repeated indefinitely.

Knight Frank report the High Court in June overturned the previous decision reached in favour of the council at the Magistrates Court last year in Makro Self Service Wholesalers Ltd v Nuneaton and Bedworth Borough Council.

The property owner used a small fraction of its empty space to store documents – between November 2009 and January 2010 only 16 pallets of documents were stored in a 140,000 sq ft shed.

Although the amount of space used was small, the court ruled the owners were entitled to six months' empty rates relief after the documents were removed.

The High Court has effectively sanctioned the intermittent use scheme.

The council were unsuccessful in arguing the amount of space occupied was insufficient to be considered actual rateable occupation.

More details on the case are given by DWF, who acted for the successful party.

Many, including the British Property Federation, want the abolition of empty rates altogether.


"We welcome this decision which supports the hard pressed ratepayer who has been forced to pay over £1 billion a year to the Treasury on empty non-productive property. The draconian changes in the legislation brought in by the last Government have damaged the property industry and driven companies out of business. It is clear, that this decision is a litmus test to the new Government's stated commitment to support business. We would call upon the Government to demonstrate this by issuing guidance to local authorities to accept this decision which supports local industry."

Councils, not surprisingly, aren’t happy – Local Government Lawyer reports: “The ability of local authorities to take a hard-line approach in empty property rate relief cases has received a setback”.

Will the case be appealed?

 [ Update 16/7/12 There's more commentary on the case here from Herbert Smith, who say that where there is genuine occupation which benefits the occupier, empty rates mitigation schemes are likely to be successful and note that the government is reviewing the empty rates regime generally.]

Flood Warnings

Flooding is hitting the headlines again with a month’s rain due to fall in the next 24 hours.

At the time of writing, the Environment Agency (EA) has urged 104 communities in England and Wales - particularly in north-west England - to be on flood alert – with 8 on the more severe flood warning requiring immediate action.


Insurers have been warning that in future insufficient investment in flood defences could cause them to withdraw insurance from some homes and small businesses.

The pact between Defra and the insurance industry, known as the Statement of Principles, guaranteeing cover to businesses and households at risk of flooding, is due to end in June 2013, with still no sign of a suitable alternative.

The timing of the latest flooding couldn’t be worse.

The uncertain future of flood insurance was already due to hit businesses and homeowners from this month as insurance cover starts to be renewed that covers the period that includes June 2013.

Some homeowners interviewed by the BBC this lunchtime complained of excesses on their policies of £10,000-£15,000.

The government says it is committed to building long term flood defences and does not want to subsidise the insurance industry.

Anyone affected by the latest flooding will need to check their policies – and make sure all premiums are up to date now.

Landlords - check your leases too. Some leases make landlords liable to make good damage caused by flooding even where flood risk is not actually covered by insurance.

Tenants - also check your lease because, if it doesn’t make the landlord responsible for making good the damage, the burden might fall on you.

Thursday, 5 July 2012

The Shard Opens Today – Fanfare for the Common Man?

The Shard will be officially opened today by Prince Andrew and the prime minister and foreign minister of Qatar, Sheikh Hamad bin Jassem bin Jabor al-Thani.

The Qatar sovereign wealth fund owns 95% of the Shard, which became the tallest building in Europe in January this year, at 310m (1,016 ft), with 72 habitable floors

The Shard will be opened tonight at around 10pm with 12 laser beams radiating from its 310m high apex and the London Philharmonic Orchestra playing Aaron Copland's Fanfare for the Common Man – which seems a bit rich given, as Steven Rose writes in the Guardian today, the apartments on the top floors are being valued at £30m-£50m each.

Even the £24.95 the BBC says it will cost to get a ticket to the viewing platform from next February is a bit steep.

Not sure how generous the weather will be today either. Michael Lockett, in charge of the unveiling, told The Daily Telegraph:

“The forecast isn’t great. At the moment it looks as though the cloud base won’t be too low, though, so people will still be able to see the top when it is lit up...In a way the laser effects we’ve got planned will work even more dramatically If there’s a bit of mist.”

Kevin Rawlinson in the Independent asks: where are all the tenants?

This building divides opinion.

Writing in yesterday’s Guardian, Simon Jenkins accused the Shard of having slashed the face of London for ever:

“This tower is anarchy. It conforms to no planning policy. It marks no architectural focus or rond-point. It offers no civic forum or function, just luxury flats and hotels. It stands apart from the City cluster and pays no heed to its surrounding context in scale, materials or ground presence. It seems to have lost its way from Dubai to Canary Wharf.”

But then London has always been a hotchpotch – never planned with the precision of, say, Haussmann’s Parisian boulevards.

I’ve got used to the Shard being there now.

From the middle distance of the river, it looks breathtaking; less so from afar (say from the top of Parliament Hill); and up close in the surrounding streets it's a forbidding glass cliff-face.

The Shard is another piece in London’s chaotic jigsaw, and as with all landmarks, over time you’ll forget it wasn’t always there.


“In 200 years time someone will submit plans for a building that obscures the view of the Shard from certain angles....There will be a public outcry.”

Update 6/7/12

Oh dear. A Dazzling  Light Show or Just a Damp Squib? - asks the Huffington Post...leading to much shardenfreude...and (inevitably) some onlookers feeling shard done by.

Wednesday, 4 July 2012

Making Buildings and Cities More Sustainable


There’s a new survey out on sustainability.

Risk consultants, Marsh, in collaboration with the British Property Federation (BPF) and BASE, have undertaken a survey of property and risk management professionals to get an understanding of the scale of the challenge in achieving truly sustainable buildings and cities.

Sustainability is easier to achieve when starting buildings from scratch.

Problem is, two thirds of the building stock that will exist in our cities in 2050 is already standing today.

The challenge of making the entire building stock more sustainable relies heavily on the ability to adapt existing buildings.

In London, for example, buildings are said to be accountable for more than two-thirds of total carbon emissions from the city.

So achieving carbon emission reductions requires changes in behaviour and the retrofitting of energy efficient technology.

One of the things noted in the survey is the increase in recent years in the environmental due diligence carried out before acquiring property.

87 per cent of respondents confirmed they included some elements of environmental performance criteria in their consideration of properties for acquisition.

Energy performance certificate rating is the criterion most often considered – even more than transport, maintenance and flood risk.

The BPF comment that this may be a response to the potential introduction of minimum building energy performance standards.

There’s a risk it will be unlawful to let F and G rated buildings after April 2018, which might account for why these issues are seen as so important.

And while we’re on sustainability – here’s another plug for my post Across the Universe: Notes on Sustainability from SIAM LLP – which looks at SIAM’s findings during a three year period spent analysing the sustainability of several major property portfolios covering all the main property sectors.

Monday, 2 July 2012

UK’s Largest Solar Farm Gets the Nod from Planners

South Hams District Council has granted full planning approval for a 15.4 hectare solar power scheme near South Brent in South Devon, reports Planning today.

TGC Renewables plan to build 27,924 photovoltaic (PV) panels over 5 interconnected fields.

TGC says the 8MW scheme is the largest solar project in the UK to date, supplying enough electricity to power around 2,500 homes and, according to Farmers Guardian, guaranteed rental income for the farm over the next 25 years.

Planning report that in its decision letter the Council said that the application site is located outside any landscape designated area and so the development will not have a significant impact on the setting of Dartmoor National Park or the Area of Outstanding Natural Beauty.

TGC’s director Rob Denham said the main challenge in developing solar farms is finding sites that are suitable and that meet the tough criteria required to obtain permits.

I’ve not looked at solar news much since the dust settled on the subsidy battle.

A trawl around the news sites today however reveals a lot of activity generally in the industry – something that would be more readily apparent if I spent more of my time in the Westcountry it seems (so instead I’ve gone even further west and used a photo from flickr* of a solar park in North Carolina!).

In June the BBC reported German developer, Kronos, was considering building an even bigger solar farm in Cornwall – a whopping 25-megawatt solar farm across 120 acres of Lower Wheatley Farm, north of Launceston.

Business Green meanwhile reported government minister Ed Vaizey has pledged to be among the first to invest in a solar project that is expected to become the largest community-owned project of its kind - Westmill Solar Farm, near Swindon.

The Swindon solar farm, which launched its share offer at the end of June, was constructed last year and houses more than 21,000 polycrystalline solar panels producing 4.8GWh per year - enough to meet the average annual electricity requirement of 1,400 homes.

These developments are good news for the solar industry after its main subsidy (feed-in-tariffs) was slashed.

Solar farms however can be every bit as controversial as wind farms for local residents.

This is Cornwall, for example, reports protesters are gearing up to fight a proposal for a 54-acre solar farm in Shillingford Abbott, near Exeter which would power 3,700 homes.

Locals want to get the whole area classed as an Area of Outstanding Natural Beauty, which would protect against large-scale development.

The developer says sheep would be able to graze between and below the panels (like in the photo!), and that the permission would be for a “temporary use” of 25 years, after which all infrastructure will be removed from the site, and agricultural use would continue.

*Photo by joanna8555 via flickr