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Courts and Inquiries

  1. HMCTS continues to list its daily operational summary, and Civil Court listing priorities.
  2. The Inns of Court College of Advocacy have published their ‘Principles of Remote Advocacy’.

Planning Updates

Legislation

  1. Further amendments have been made to the GPDO by the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (SI 412/2020) to allow emergency development by a local authority or health service body which came into force on 9th April 2020.
  2. There are geographical, spatial and height restrictions where development is not permitted but it otherwise allows local authorities and specified health service bodies to undertake development for the purposes of preventing an emergency, reducing/controlling/mitigating the effects of an emergency or taking other action in connection with an emergency. The right is subject to a condition that any operational development is removed and the land restored within 12 months from the permitted use ceasing.
  3. The Government is no further forward in addressing the issue of permissions expiring (or the deferment of CIL payments) despite increasing pressure to do so with research suggesting that over 1000 projects are at risk in the next 3 months because of the inability to get on site and implement permissions. There are some suggestions that s. 97 of the Town and Country Planning Act 1990 might be used (the power to revoke or modify a planning permission) but this remains untested.

Policy

  1. Publication of the proposed Planning White Paper intended about now has been pushed back. MHCLG is unsure when it will now be published.
  2. The NPPG was amended on 7th April 2020 in relation to Neighbourhood Plans: https://www.gov.uk/guidance/neighbourhood-planning–2#covid-19
  3. The new guidance relates to Referendums, Decision Taking, Examinations and Public Consultation. Referendums are postponed until 6th May but examinations, where the examiner considers that oral representations are necessary, can still take place using video conferencing or other suitable technologies.

Lpa decisions

  1. Following on from The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 coming into force on 4th April 2020 allowing local authorities to hold virtual meetings, a number of authorities have done so including Kensington & Chelsea, Westminster City Council and South Somerset District Council (some more successfully than others).

Hearings and Public Inquiries

  1. PINS are currently assessing the suitability of a limited number of appeals to trial remote hearings. The latest guidance can be found here.

Public Law, Health & Social Care Update

  1. Tim Buley QC, Graham Denholm, Alex Goodman, and Christopher Jacobs have provided a review of recent experience of challenging immigration detention in the COVID-19 pandemic. Based on recent experience before the Courts, the review argues that the Home Office’s reliance on the Detention Action claim (which sought wide-ranging interim relief including release of detainees with relevant comorbidities in the absence of overriding public protection concerns and a review of the detention of all other detainees within 48 hours) is misplaced or at least overstated.
  2. The Home Office has updated its guidance for visa applicants affected by travel restrictions associated with COVID-19, by adding information about applicants who can start work or study in the UK before their visa application has been decided.

Property Update

  1. The previously reported potential surge in winding up petitions for commercial tenants unable to pay their rent has been reported in the mainstream media, with Gym bosses seeking urgent government assistance as a number of landlords seek to use insolvency procedures to obtain payment of rent.
  2. The High Court have clarified that claims for possession against trespassers can go ahead in certain circumstances. In UCL Hospital Foundation Trust v MB [2020] EWHC 882 QB, Chamberlain J held that an NHS trust’s possession claim relating to a bedroom in its hospital could be dealt with by way of an injunction. The facts of the case are both unusual and saddening, regarding a long term patient with complex psychological conditions who refused to vacate her room, despite the Local Authority offering a comprehensive care package. The Court held that notwithstanding the claim could not proceed under CPR Pt 55 because of the general stay on possession claims effected by CPR PD 51Z, a property owner was, in general, entitled to an injunction to enforce its rights as against a trespasser. As such, the Court was willing to entertain the claim for an interim injunction. However, since an interim injunction would amount to final relief, the Court needed to be satisfied there was clearly no defence to the action and also consider the balance of convenience and the other discretionary factors. Having considered those factors, in light of the needs of the hospital in the current pandemic, and the potential danger to the defendant in remaining there, the Court ordered the injunction.
  3. This may go some way to answering the urgent questions about CPR PR 51Z which were addressed to the Master of the Rolls in a joint letter to him from the Property Bar Association and the Property Law Association, suggesting that the Practice Direction amounts to a “licence to trespass”.
  4. Myriam Stacey and Emma Humphries of Charles Russell Speechleys answer readers Covid-19 queries in the Estates Gazette.
  5. Mr Justice Marcus Smith has remotely heard and given judgment on a leasehold enfranchisement appeal involving 19 respondents in Freehold Properties 250 Ltd v Field and ors [2020] EWHC 792 (Ch), clearly providing further proof that the Business and Property Courts are open for business despite lockdown.


Issue Authors:
John Litton QC, Andrew Byass, Jenny Wigley, Aaron Walder, Nick Grant, Alex Shattock

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