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Z51000153 Real Estate Law

Published : 28-Sep,2021  |  Views : 10

Question:

You are a trainee in Gilbraith Saunders LLP and are currently nearing the end of your Real Estate seat. Your supervisor, Harry Wright, has asked you to write a series of handover notes on all of the matters upon which you have been working. These notes will assist your successor, fellow trainee Jenna Robbins, to get up to speed quickly on the matters she will be taking over from you.

1. Give a brief background to the matter (i.e. who the client is, what the property is and why they are buying it);
2. Clearly state how far the matter has progressed; and
3. Emphasise any issues that need dealing with imminently, with as full an explanation as you can give, in order to help Jenna get to work quickly and efficiently.

Answer:

Memorandum

To: Harry Wright

CC:  Jenna Robbins

FROM:

DATE:

SUBJECT:  Details of the matters which have been working upon

Background:

Gilbraith Saunders works for the Phoenix Developments ( in short known as “Phoenox”) who is the commercial property developer working throughout the England. It develops the major range of the commercial property which includes the offices and retails, industrials, leisure and the distribution units.  The Phoenix wanted to develop the site for the business and the retail park at Nottingham. Harry Wright, the supervisor of Gilbraith Saunders had advised the Phoenix that the factory site should not be purchased in Nottingham until all the necessary permissions should be taken which are required for the development of the site. For this purpose, Harry Wright had negotiated with the personnel of the British Ordinance that the agreement for the purchase of the site must be conditional as it must be executed only after obtaining the necessary permissions of the planning permission.

After the negotiation the developer i.e. Phoenix had entered into an agreement called ‘Planning obligation by deed of the agreement under Section 106 of the Town and Country Planning Act,1990’ with British Ordinance Systems Limited whereby they had decided the site be purchased only on the condition that if the planning permission be granted and after the completion of the purchase it suggested to carry out the development. The Phoenix had submitted the application to the council whereby both the parties had agreed to enter into the agreement for the purpose to secure the planning obligations.

The Phoenix wanted to purchase the site which presently had an old munitions factory which were owned by the British Ordinance. The factory was built in the year 1920s and it was closed in the year 2013. It was come to the knowledge that the site was actually the agricultural land. The site was about 38 acres i.e. 15.38 hectares in size which has the great potential for the mixed use of business and the retail park. The major plus point of this site is that it is near to the city centre and has very great links with the road and rails. From all the prospects, the property looks like the gem and very great for the expansion of the business of the Phoenix.  As the Phoenix Developments who is the commercial property developer working throughout the England. It develops the major range of the commercial property which includes the offices and retails, industrials, leisure and the distribution units. They wanted to develop the land. They wanted to purchase the site as it seems to be the great project for the development.

Development in the Matter:

As it was advised by Harry Wright, the supervisor of Gilbraith Saunders that the site should not be purchases until all the necessary permissions should have been taken for the development of the site and for this purpose, the supervisor of the Gilbraith Saunders i.e. Harry Wright had negotiated with the solicitors of the British Ordinance that the agreement of the sale of the factory site must be conditional i.e. after obtaining the necessary permissions the purchase should be done. After the efforts of Harry, negations had done and the British Ordinance had agreed upon the terms of the Harry. After that both the parties i.e. Phoenix and British Ordinance had entered into the agreement ‘Planning obligation by deed of the agreement under Section 106 of the Town and Country Planning Act,1990’ whereby they had decided the site be purchased only on the condition that if the planning permission be granted and after the completion of the purchase it suggested to carry out the development.

Issues required to be dealt with:

As it was agreed between the both the parties that purchase of the factory site should be done only after obtaining the necessary permissions and for that purpose also they had entered into an agreement whereby they had decided the site be purchased only on the condition that if the planning permission be granted and after the completion of the purchase it suggested to carry out the development. So, Robbins is required to see whether the steps have been taken to take the necessary permissions or not. Whether the British Ordinance makes the efforts for taking the necessary approvals as per the town and the country planning system. Robbins has to check whether the necessary efforts has been taken by both the parties to take the necessary approvals. As it is the well settled law that the planning permission should be granted subject to some conditions. The nature of these conditions are limited by some tests known as Six tests mentioned in the paragraph 206 of the National Planning Policy Framework. For the grant of the planning permission some conditions have been imposed. The local planning authorities have some ways for imposing the requirements on the developers of the property that can go beyond the scope of the planning conditions. Generally the mechanism of the local planning authorities has been used is the planning obligations or known as the S106 agreement which is in reference to the legislative provision. As Harry Wright is not the planning specialist, so Robbins are required to made an update of the area for her supervisor Harry and also she was required to take an update of the rest of the Real Estate Department.

Section 106 Agreements:

Section 106 agreements are the legal agreements which are generally made between the local authorities and the developers. They are used to link the planning permissions and also known as the planning obligations. Section 106 agreements are generally prepared when it is observed that the development would have the important impacts on the local areas which could not be developed by means of conditions which are attached to the planning conditions. For the execution of the Section 106 agreement, the developer is required to submit the planning application to the council and after that the council will assess the application as whether the development will cause the important impact to the area and the community. The terms of the s 106 would depend upon the nature of the development and it is also based on the requirements of the District. The general obligations include the public open space, affordable housing, highways, educations and also the town centre improvements. The ingredients of s 106 agreement agreed through the consultation period of the application known as the planning application with the concerned parties and the planning officer. The s 106 agreement is the legal agreement which should be prepared with the advice of the solicitor of the council. The development planning manager has the responsibility to ensure that all the agreements are completed much prior to the commencement of the proposed work.

References:

Abercrombie p, 'planning of town and country' (1930) 14 Town Planning Review

Arthur N, 'Planning Permission And How To Obtain It' (1997) 19 In Practice

Capner G, 'Major Projects: How To Get Your Planning Permission' (1987) 5 International Journal of Project Management

Elvin QC D, 'Planning Statutory Challenges: Permission And Other Procedural Reforms' (2015) 20 Judicial Review

Turton J and Hatfield B, 'implied planning permission' (1989) 7 Facilities

Walters * D, 'Performance Planning And Control In Virtual Business Structures' (2005) 16 Production Planning & Control

Zhang W, 'The British Planning Permission System Of Urban Land Use Planning' (2012) 174-177 Applied Mechanics and Materials

Capner G, 'Major Projects: How To Get Your Planning Permission' (1987) 5 International Journal of Project Management

Turton J and Hatfield B, 'implied planning permission' (1989) 7 Facilities

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