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Built Environment

Blog

How long does your collateral warranty last?

Published on 29 August 2018. By Jamie Key, Senior Associate

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The Technology and Construction Court's recent judgment will be of interest to all those in the industry who either provide or receive collateral warranties.

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Blog

Adjudication and liquidation – the final word?

Published on 03 August 2018. By Sarah Shafiq, Associate and Dan Preston, Partner

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It is generally the case (though not always!) that courts are reluctant to enforce monetary award adjudication decisions in favour of companies in liquidation (CILs). This is because of the uncertainty surrounding the CIL’s ability to repay those sums should it later transpire it was not entitled to the award.

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Publication

Construction newsletter July 2018

30 July 2018

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What challenges does the construction industry face and what does the future hold?

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Blog

Network Rail to ban retentions and mandate payment periods to subcontractors

Published on 20 June 2018. By Jamie Key, Senior Associate

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Network Rail mandates tier one contractors to abolish cash retentions and pay suppliers within 28 days.

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Blog

Oral variations can leave you between a Rock and a hard place

Published on 31 May 2018. By Dan Preston, Partner

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Variations to contracts, whether the scope of the works or services to be performed or the terms under which those works/services are provided, are common place in the construction industry. Often these variations are agreed on site, in a hurry and with little regard to any formalities that might be contained within the parties' contract. The recent case of Rock Advertising Limited v MWB Business Exchange Centres Ltd provides an important reminder that the contract shouldn’t be ignored.

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Blog

A valuer does not owe a duty of care to the directors of a borrower

Published on 02 May 2018. By Alexandra Anderson, Partner and Felicity Johnson, Senior Associate

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The High Court has held that a valuer who prepares a valuation for a lender does not owe a duty of care to the directors of the borrower who claim they have suffered loss as a result of relying on that valuation.

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Publication

Construction newsletter April 2018

13 April 2018

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The first quarter of 2018 has been a challenging one for the construction industry. It saw a further decline in construction output in January, with the Office of National Statistics reporting that construction output fell by 3.4% in January from December.

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Blog

New(ly reiterated) grounds for stay on enforcement of an adjudication decision

Published on 05 April 2018.

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A real risk of the dissipation or disposal of an adjudication sum may justify the grant of a stay on enforcement of an adjudicator's award.

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Blog

Smashing 'Smash and Grab' – Coulson J delivers significant blow to smash and grab tactic

Published on 01 March 2018. By David Thorne, Partner

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Over recent years a body of case law has developed supporting the principle that in the absence of a valid pay less notice an employer is exposed to a 'smash and grab' adjudications for payment of the sum stated as due in a contractor's interim application even if that application is overstated. On Tuesday this week, in what is likely to be his final judgement before moving to the Court of Appeal, Coulson J delivered welcome clarification on the matter in Grove Developments Ltd v S&T (UK) Ltd. Coulson J held that even in the absence of a valid pay less notice it is open to an employer to commence adjudication proceedings for determination of the 'true' value of an interim application potentially blunting the tactical utility of 'smash and grab' adjudications.

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Blog

Equitix ESI CHP (Wrexham) Limited v Bester Generacion UK Limited: Judicial guidance on the applicability of the HGCRA to a dispute under a power generation contract

Published on 19 February 2018. By Sarah Shafiq, Associate and Dan Preston, Partner

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Equitix ESI CHP (Wrexham) Limited (Equitix), a special purpose vehicle, entered into a design and build contract with Bester Generacion UK Limited (Bester) for the construction of the Wrexham Biomass Fired Energy Generating Plant (the Project).

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Blog

RICS Conflict Avoidance Pledge

Published on 12 February 2018.

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It is a well-known fact that the costs of resolving disputes can quickly escalate, and that it is often not cost and time effective to pursue even mid-sized claims through arbitration or litigation. In an attempt to circumvent the need for this sort of dispute resolution, by avoiding disagreements developing into disputes, the Conflict Avoidance Coalition has formed and introduced a "Conflict Avoidance Pledge".

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Blog

Retrospective and prospective delay analyses – do they provide the same results?

Published on 26 January 2018. By Dan Preston, Partner

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The recent case of Fluor v Shanghai Zhenhua Heavy Industry Co considered the difference between prospective and retrospective approaches to delay analysis and whether they lead to the same results.

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Blog

Incorrect Ownership Certificates: A Cautionary Tale

19 January 2018

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In a case which the judge deemed to be "a cautionary tale about how not to submit a planning application and its consequences", the High Court has recently tackled the question of the effect of incorrect ownership certificates submitted with planning applications. In considering the issue, the Court has given us a helpful reminder of when such an error might lead to the quashing of a planning permission.

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Blog

Notification under a specific clause must be clear

Published on 12 January 2018. By Rebecca Taylor, Associate

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Systems Pipework Limited (SPL) v Rotary Building Services Limited (RBSL) determines that where a clause may have a draconian effect it is necessary for notification of this clause to include reference to the clause and clearly comply with the clause's purpose and requirements.

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Blog

12 Drummers Drumming: Pa rum pum pum pum

18 December 2017

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Whilst we all like to get into the festive spirit it's not much fun if you're living next door to those drummers. In this final instalment of the festive blog series we consider what action can be taken against noisy neighbours.

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Blog

11 pipers piping: How does MEES differ in Scotland?

Published on 15 December 2017. By Johanna Hall, Senior Associate

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It's day eleven of our festive blog series: The origins of the piping pipers may not be firmly rooted in Scotland, but they brought to our minds thoughts of bagpipes, and other things that are found north of the border. The Scottish were first to implement their energy efficiency regulations but now the English and Welsh are not far behind, with MEES coming into force early next year: what will the differences between the systems be?

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Blog

10 Lords a-Leaping

14 December 2017

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It's day 10 of our blog series: The House of Lords was once the court of last resort for most cases heard in the UK. However, in 2009 those Law Lords leapt into the 21st Century and rebranded themselves as the Supreme Court of Justice.

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Blog

9 Ladies Dancing: The Mayor of London protects the night-time economy

13 December 2017

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The Mayor of London published supplementary planning guidance last month, aiming to protect and enhance cultural venues across the capital and promote the night-time economy, and the draft revised London Plan could put this on a policy footing.

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Blog

8 Maids A-Milking: Milking the Consumer during the Festive Period

Published on 12 December 2017. By Johanna Hall, Senior Associate

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This article explores what's going on in the retail industry to draw in shoppers at this crucial time of year.

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Blog

FIDIC Rainbow Suite: Second Editions unveiled

Published on 12 December 2017. By Christina Cheriyan, Associate

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18 years after the publication of the original editions, FIDIC released its Second Edition Red (Construction), Yellow (Plant and Design Build) and Silver Books (EPC / Turnkey Projects) at the FIDIC Users' Conference in London last week. The philosophy behind the revised contracts is greater clarity and transparency with an emphasis on avoiding disputes and quickly resolving them when they do arise. We highlight some of the key changes within this note.

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Blog

7 Swans-a-Swimming: new regulations are there to protect them

11 December 2017

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It's day seven of our festive blog series: The Conservation of Habitats and Species Regulations 2017 have come into effect. What do they say for the likes of our swimming swans?

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Blog

6 Geese A-Laying: The Significance of laying the Golden Brick

Published on 08 December 2017. By Johanna Hall, Senior Associate

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What does the term "Golden Brick" mean, who uses it and why? In this article we explore the usefulness of the golden brick, the formalities which determine whether it applies and alternative approaches.

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Blog

5 gold rings: a sensible way of paying for your Christmas shopping?

07 December 2017

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It's day five of our festive blog series: Gold is rare as a payment form these days, and cash is becoming increasingly so. Whilst retailers and consumers are embracing cashless payments, they are not without their risks.

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Blog

4 Calling Birds – it's good to talk…

06 December 2017

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How will the new electronic communications code affect telecoms providers?

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Blog

3 French hens: are too many of our house-building eggs in their baskets?

05 December 2017

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We couldn't pass up the opportunity to mention Brexit – its potential impact on the rate at which we are building out new homes has been in the news a lot recently, with fears over the loss of foreign workers and slowdown across the economy.

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Blog

2 Turtle Doves

04 December 2017

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Most leases of both commercial and residential premises include an express quiet enjoyment covenant, but what does this actually mean, and how can you ensure peace is retained.

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Blog

A Partridge in a Pear Tree

Published on 01 December 2017. By Johanna Hall, Senior Associate

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This is the first of a series of blogs we shall be posting in the run up to Christmas based upon The Twelve Days of Christmas carol with a property theme. We hope you enjoy reading them and have a very merry Christmas.

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Blog

Payment and Payless Notices – the Basis of Calculation – Judicial Guidance at last

Published on 13 November 2017. By Sarah Shafiq, Associate and Dan Preston, Partner

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Whilst the Scottish case of Muir Construction Limited v Kapital Residential Limited is not binding on the English courts, the judgment is not only perfectly sensible but also provides useful guidance on the requirements for a payless notice under the amended Housing Grants, Construction and Regeneration Act (the Act) - an area which has not had much judicial attention since the change from the withholding notice regime. In a bumper month for payment notice disputes, we also had guidance from the Court of Appeal on the need for payment notices following termination – both decisions coming just as the Government announced its consultation on the 2011 amendments to the Act.

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Blog

Sinking and Reserve Funds – how best to save for a rainy day

Published on 08 November 2017. By Johanna Hall, Senior Associate

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Most managing agents will know that it is best practice to keep funds aside for a rainy day but how many are aware of the formalities necessary to properly account for such funds?

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Blog

Construction Act and Retention consultations published by the Government

Published on 02 November 2017. By Jamie Key, Senior Associate

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The Government has recently published two consultations to review (i) the implementation of the 2011 changes to the Construction Act; and (ii) the practice of cash retention under construction contracts.

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Blog

From light industrial to residential – the new permitted development right

01 November 2017

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At a time when headlines and inboxes are filled with new comment, consultation and discussion on how to tackle England's housing crisis, a new permitted development right allowing a change of use from light industrial to residential has come into effect with very little fanfare. So what's new, and why have we not heard more about it?

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Blog

Adjudication – mind the recovery gap

Published on 23 October 2017.

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O'Farrell J recently severed an adjudicator's decision as she considered that the adjudicator did not have jurisdiction to award costs under the Late Payment of Commercial Debts (Interest) Act 1998 (Late Payment Act) in Enviroflow Management Ltd v Redhill Works (Nottingham) Ltd (2017) (unreported, 16 August 2017).

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Blog

North Midland Building Limited v Cyden Homes Limited [2017] EWHC 2414 (TCC): Choose your extension of time provisions carefully

Published on 11 October 2017.

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North Midland Building Limited v Cyden Homes confirms the primacy of the parties' contract in determining an extension of time. Specifically, in North Midland the High Court held that an amendment made to the construction contract meant that, in a situation of concurrent delay, North Midland Building Ltd (the Contractor) was not entitled to an extension of time from Cyden Homes Ltd (the Employer) and that the prevention principle, had it arisen, would not take precedence over the expressly agreed terms of the contract.

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Blog

Serial referrals and abandoned adjudications: will the court grant an injunction prohibiting adjudication proceedings?

Published on 09 October 2017.

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In Jacobs v Skanska, the TCC has recently held that starting a second adjudication on the same or similar issues is unreasonable but not oppressive and an injunction should not be granted. In the recent case of Jacobs UK Limited v Skanska Construction UK Ltd [2017] EWHC 2395 (TCC), Justice O'Farrell DBE clarified the courts will not restrain a party who opens and closes numerous adjudications for a tactical benefit but, the responding party may be granted a wasted costs order.

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Blog

The Mayor of London's Affordable Housing SPG: 10 things you need to know (part 2)

30 August 2017

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This supplementary planning guidance, issued this month, builds on the Mayor's long-term aim for half of all new homes in London to be affordable (as defined in the London Plan). More will no doubt be heard in the revised London Plan when that emerges, but in the meantime here are some headlines which we hope help you cut through the SPG.

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Blog

The Mayor of London's Affordable Housing SPG: 10 things you need to know (part 1)

24 August 2017

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This supplementary planning guidance, issued this month, builds on the Mayor's long-term aim for half of all new homes in London to be affordable (as defined in the London Plan). More will no doubt be heard in the revised London Plan when that emerges, but in the meantime here are some headlines which we hope help you cut through the SPG.

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Blog

Contractors and Insurers beware - Contractor found to bear the risk of an incorrect standard as fitness for purpose prevails in the Supreme Court

Published on 03 August 2017. By Rebecca Taylor, Associate

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This morning the Supreme Court handed down its much anticipated judgment in MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited and another [2017] UKSC 59. The Judgment should be of concern to both contractors and their insurers.

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Blog

Who has to sign a s106 agreement?

02 August 2017

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The question of who needs to sign a s106 agreement can be a bone of contention between applicants and local planning authorities. Opposing views can risk planning consents being held up, or third parties challenging consents for failure to properly secure essential mitigation. So who, then, should sign planning agreements?

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Blog

Is it game over for ground rent?

01 August 2017

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Considering the recent Government proposals to change the rules on ground rent and how those proposals may affect developers.

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Blog

Advertisement consent – five rules for retailers

26 July 2017

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A summary of advertisement control for retailers in England, including deemed consent provisions, applications, standard conditions and discontinuance orders.

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Blog

Stay in your lane! How expert witnesses can stray away from their duty to the Court

Published on 24 July 2017. By Philippa Lutter-Paz, Associate

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The judgement in 125 OBS Nominees (1) and anr v Lend Lease Construction (Europe) and anr [2017] provided useful judicial clarification as to when expert evidence from certain disciplines will and will not be appropriate and how experts can walk a fine line between advocating their client's case and providing independent evidence.

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Blog

What is "reasonable" when making a recovery?

Published on 18 July 2017. By Philippa Lutter-Paz, Associate

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Recovering sums paid out in settlement through court proceedings is an area of law where the Court's ability to resolve a dispute according to what is fair, proportionate and commercially sensible is alive and well.

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Blog

Complex contracts and intricate inconsistencies – a reminder of the court's approach to contractual interpretation

Published on 18 July 2017. By Dan Preston, Partner and Rebecca Taylor, Associate

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In a year in which the Supreme Court will have produced two Judgments on the topic of contractual interpretation, the TCC's judgment in 125 OBS v Lend Lease is a useful reminder of the courts' approach to resolving these disputes and their attempt to find a balance between the so-called literal and commercial approaches to interpretation.

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Blog

Cherry picking in an adjudication is fine – as long as you're the Referring Party

Published on 03 July 2017. By Dan Preston, Partner

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It has been established for some time that Referring Parties have the right to 'cherry pick' its claim for the purpose of adjudication - essentially selecting part or parts of a wider application or dispute and referring those to an adjudicator to make an award on rather than the full dispute or an entire account.

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Blog

Even More Challenging Times – 5 More Risks Following The Grant of Planning Permission

14 June 2017

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This post is the second in a two-part series in which we highlight ten areas where the risk of a third party challenge against the grant of planning permission might arise. The list we have given is not exhaustive, but all issues fall within the broad parameters for judicial review grounds, being decisions which have been taken irrationality, ultra vires (outside the scope of the authority's powers), or with procedural irregularity.

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Blog

Challenging Times - 5 Risks Following The Grant of Planning Permission

06 June 2017

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Developers and local authorities will be only too aware that third parties can challenge a grant of planning permission through the courts by way of a judicial review. An application for such a challenge is costly, and must be made quickly. Further, it can only be brought on limited grounds. Whilst this may offer a developer or local authority some comfort, it is worth being aware of some of the more common grounds of challenge so that steps can be taken to minimise the risk of these arising.

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Blog

Pre-loading the pre-app?

24 May 2017

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Discussion on the planning pre-app process considering cost and time considerations and the benefits and concerns of going through this initial advice process.

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Blog

You can't park there!

17 May 2017

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A summary of the May 2017 Court of Appeal decision in Khodari relating to whether parking permit restrictions can be secured in agreements made under s106 Town and Country Planning Act 1990.

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Blog

Restrictive Covenants: Public Policy v Legal Obligations

12 May 2017

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A commentary on the recent case of Millgate Developments v Smith concerning the breach of a restrictive covenant.

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Blog

EIA – a new role for the planning system in considering the health impacts of development?

10 May 2017

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A summary of the EIA Regulations 2017 and the consideration as part of the planning application process of a proposed development's likely impacts on human health.

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