My company owns some land and hopes to obtain planning permission to develop two new houses, but a neighbour has been disputing the boundary line.
We had some discussions but they proved fruitless, so I erected a new fence on what I considered to be a more than fair position and sent my neighbour a letter to explain why I had done so. All was quiet for nine months until I received a letter from his solicitor saying that the fence had been put on his land and was a trespass.
I replied with evidence from the Land Registry plan, and invited the solicitor to exchange pre-registration deeds (mine show the line that I used for the fence). I also asked the solicitor whether he was acting under the terms of a legal costs insurance policy – as I suspected that the neighbour had taken out a new policy and waited nine months to pretend that this was a new dispute.
However, the solicitor ignored both my requests.
I have now put in a fresh planning application but the neighbour has written to the planners saying that the boundary line is misrepresented in my application.
Understandably, the authority does not wish to act as referee in a boundary dispute so it will declare the application invalid unless I alter the line on the plans.
I am intending to redraw the plans to concede this while writing to the neighbour to clarify that that the planning site will be drawn inside my land – so that I will be free to reach a deal for the sale of some land to him after the application is granted.
Is this is a wise course of action?
Firstly, there is no mechanism available to oblige your neighbour’s solicitor to advise you whether an insurer has been involved. The usual client confidentiality rules will apply.
In relation to your application for planning permission, what you suggest is a practical way forward. However, the local planning authority should accept as correct the ownership certificate you lodged with the application. The General Development Procedure Order 1995 requires the plan to identify the land to which the application relates. You will need to check your local authority’s validation requirements. It is an offence to provide false or misleading information on a certificate.
If it proves difficult to persuade the council to validate your application, removing the land that is in dispute from the red boundary line should
allow the application to proceed. This is a solution, provided the land is not necessary to allow the building to be carried out.
In terms of ascertaining the correct boundary, you might wish to take advice from a solicitor and a surveyor. Pre-registration deeds, physical features on the land, aerial photographs and historical records can be used to determine the correct boundary.
Kate Reid is a planning solicitor at Blandy & Blandy, a law firm
Land we bought is contaminated
I run a property development company that specialises in small to medium-sized commercial buildings on brownfield sites. But I have just learnt that some of the land we have bought for development is contaminated. What
action can I take against the sellers of the land,
who assured us it was fine?
The liability of the sellers will depend on several factors, including whether the land falls within the legal definition of “contaminated land” in the Environmental Protection Act 1990. This requires significant harm – or a significant possibility of such harm – being caused by the pollutants.
If the land is contaminated, you might be liable for clean-up costs simply because you are the current owner. The sellers would only retain direct liability if they had caused or knowingly permitted the contamination. However, you might still be able to recover remediation costs from the sellers due to their misrepresentation.
If the land isn’t contaminated, there is no legal requirement for remediation. Even so, you might be able to recover the reduction in the value of the land, and the reasonable costs incurred – although you would be expected to mitigate your loss, and not take any action that would increase the contamination or costs. This might make development unviable, but financial loss due to the lost development opportunity is not recoverable.
Whether any claim is successful will depend on exactly what the seller told you, whether it was reasonable to rely on it, and whether the seller knew, or should have known, about the contamination.
Karen Jones is a partner and head of planning and environment at Blandy & Blandy, a law firm
How to discipline a sick employee?
I run a small chain of shops, and I am having problems with an employee who is under a disciplinary sanction. The employee was due for a disciplinary meeting but has since been signed off sick. This has happened twice before. Can I take disciplinary action against him while he’s off sick, or must I wait until he has returned to work?
Generally, when disciplining a sick employee, you should be prepared to adjourn any meeting for a reasonable period of time. How long this is will depend on the offence and the reason for absence. If the employee remains absent (as in this case), you should try to obtain medical advice about whether the employee is well enough to attend a meeting and, if not, when they are likely to be. You can then
decide whether the matter can wait.
But you should ensure that the matter is not allowed to drag on if the return date is constantly being extended. In these situations – if it is a minor case – you may decide simply to let the matter drop. If it is more serious, you should consider conducting the disciplinary hearing in another way, such as by telephone, at the employee’s home or closer to it, or by written submissions. In the end, you might need to hold the disciplinary hearing in the employee’s absence and make a decision on the basis of all the evidence available.
David Buckle is head of employment at Cubism Law
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