Legal and Regulatory Compliance (Level 2) Flashcards
Tell me about your experience of a legal/regulatory requirement relating to a project - Student Accommodation Development, Exeter
Student Accommodation Development, Exeter
- Procurement as a public works contract under Public Contracts Regulations (2015)
- In line with Regulation 107 – Linkcity was required to submit SQ outlining proposed bidding model, financial standing and technical capability
- I was responsible for drafting some of the answers and confirming Linkcity’s compliance with the legislation outlined in the SQ
Tell me about a current piece of case law you are aware of relating to your role
Armstrong v Secretary of State [2023]
- The case involved a site in Cornwall that had been granted full planning permission for the “construction of one dwelling”
- One of the conditions attached to the planning permission required the development to be carried out in accordance with approved drawings
- The claimant made a S73 application to substitute the drawings completely changing the form and style of the proposed house
- S73 application (minor material amendment) was refused by the planning inspector – arguing that the change would result in the development being materially different to the previous approval referring to the Planning Practice Guidance
High Court rules that the planning inspector had misdirected himself by making the decision based on PPG as this is not planning legislation and that given that it was only a single dwelling that was approved there would be no change to the “basic principle” of the approved development
Relevant to my role:
- Highlighting that Planning Practice Guidance should not be considered planning law
- A minor material amendment application should be granted assuming there is no change to the “basic principle” of the approved development – regardless of form or structure
Tell me about a current planning policy issue you are aware of
Proposed Changes to NPPF in relation to 5 year housing supply
- proposed change to remove the obligation of LPA’s to produce a 5 year housing supply if produced in the last 5 years
- Housing targets not being met, removal of target does not hold LPAs accountable
Tell me about a current appeal/representation you are aware of relating to your role.
LB Hillingdon v Mayor of London
LB Hillingdon commenced judicial review proceedings on the decision made by the Mayor of London to grant the permission for a 514 unit residential development up to 11 storeys in height
The grounds for Judicial Review brought by LB Hillingdon were:
- Misinterpretation of Policy D9 of the London Plan - tall buildings were to be assessed for policy compliance against the criteria in Part C
High Court ruled in favour of the Mayor of London
Implications as to the application of Policy D9 – Tall Buildings
- The upshot is that tall building proposals do not necessarily have to be located within defined tall building zones in Local Plans, and can be acceptable where they result in public benefit and are in accordance with the development plan as a whole
- Proposals for tall buildings outside identified zones should not be considered in a vacuum and should have regard to all parts of policy D9.
Tell me about your understanding of the law relating to conservation areas.
Conservation Areas and Listed Buildings
Key Legislation - Planning (Listed Buildings and Conservation Areas) Act (1990)
- provides specific protection for buildings and areas of special architectural or historic interest
- S69 of the act requires LPAs to determine which parts of their areas possess special architectural or historic interest and to designate them as conservation areas
- S71 of the act requires LPAs to formulate and publish proposals for the preservation and enhancement of conservation areas
- There are also specific planning permissions for listed buildings – Listed Building Consents
Tell me about your understanding of the law relating to planning policy.
Key Legislation - Town and Country Planning Act (1990) – Covers the UK
- States the policies and general proposals for the development and other use of land in its’ area
- Provides the framework for local plans
Important Sections
- Section 78 – Sets out the planning appeal process
- Section 106 – Sets out planning obligations (S106 agreements)
- Section 70 – Enables the local planning authority in granting planning permission to impose planning conditions
Student Accommodation Development, Exeter - How does the SQ aim to ensure fairness between bidders?
Under PCR (2015) an SQ ensures fairness between bidders by:
- Informing each bidder of updates and progression at the same time
- Sharing all clarifications and information – any clarifications raised will be shared with all tendering parties
- All parties having the same deadlines
Student Accommodation Development, Exeter - What are the consequences of providing inaccurate information on a SQ?
- You may be excluded from the procurement procedure, and from bidding for other contracts for three years.
- If a contract has been entered into you may be sued for damages and the contract may be rescinded.
- If fraud, or fraudulent intent, can be proved, you or your responsible officers may be prosecuted and convicted of the offence of fraud by false representation, and you must be excluded from further procurements for five years.
Student Accommodation Development, Exeter - What are the general principles of both the EU OJEU process and the post-Brexit process?
The general principles of the procurement process both in the OJEU process and UK FTS (post Brexit service) are:
- non-discrimination
- free movement of goods
- freedom to provide services
- freedom of establishment
Student Accommodation Development, Exeter - When contracting with a public sector body, what are the differences
around legal confidentiality that you need to be aware of?
A contracting authority may need to disclose confidential or sensitive information to bidders in connection with the public procurement process -
it is common practice to require bidders to sign a confidentiality agreement as a pre-condition of participation in the procurement process, including requiring the bidder to specify which individuals and third party advisors (if any) will be given access to the confidential information
Regulation 21(3) of the Public Contracts Regulations 2015 (PCR 2015) states contracting authorities may impose ‘requirements’ on bidders aimed at protecting the confidential nature of information disclosed during the procurement process
Birmingham - If the tenant broke their commitment to abide by the planning conditions, what could you do as landlord?
Notify them that they are breaching the terms of their lease and threaten legal action for breach of contract if they do not comply with the planning conditions set out in the lease
Birmingham - Based on your legal advice, what made those terms enforceable?
For a contract to be legally enforceable there must be: agreement between the parties; consideration; an intention to create legal relations.
All of these were components of the lease and therefore I was assured that the lease terms to comply with planning conditions would be enforceable
Birmingham - When does a lease need to be registered?
If your landlord’s title is registered, then you must register the lease, no matter what the term.
If your landlord’s title is unregistered, the lease will only need to be registered if it is granted for a term more than 7 years
Birmingham - If a tenant breaks planning law, is the landlord at legal risk?
Yes – the LPA can serve a planning enforcement notice to ensure compliance with planning conditions and the planning permission.
Local planning authorities are required to serve the Planning Enforcement Notice on all parties with an interest in the relevant land
- As a landlord, you are not absolved from potential liability
under the Notice simply because the land is tenanted
Birmingham - Compared with planning conditions, if you sign a S106 agreement, who needs to comply with the S106 if you sell a property?
S106 Agreements are legally binding on the land and run with the land – so the new landowner would still be required to meet the obligations of the S106.
