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News and Comment
Planning Enforcement Notices – Discharged by Compliance?
It is a common misconception that planning enforcement notices, that is notices served by the local planning authority to remedy a breach of planning control, are discharged by compliance. It seems perfectly reasonable to assume that a notice requiring the removal of UPVC windows would be satisfied once the offending windows had been removed. However, this is not the case, the notice remains valid and is ‘revived’ if the breach re-occurs.
Why is this an issue? The enforcement notice remains on the land charges register and will be disclosed by a local authority search. This could cause problems on a sale or finance of the property in question as any well advised purchaser or bank will insist on the notice being removed.
How can the notice be removed from the land charges register? There are two ways. Firstly, you can write to the local planning authority and ask them to confirm that the enforcement notice has been complied with. Or, you can apply for a certificate of lawfulness of existing use or development.
Measures to help charities and voluntary sector compete for rehabilitation contracts
The Government has announced today “a comprehensive package of measures to help the voluntary sector and mutuals compete for contracts to cut reoffending”. The measures are intended to support existing and new providers in the voluntary, social enterprise and private sectors, and changing the way offenders are rehabilitated. Details of the measures can be seen at the Government website.
Can you withdraw a break notice?
What should you do if your tenant serves a break notice and then subsequently decides to withdraw it? As a landlord you are happy for the tenant to remain in occupation and the payment of rent to continue. Surely you simply agree that the notice has been withdrawn and allow the lease continues as before? Unfortunately that is not the case. Once a break notice has been served is cannot be unilaterally withdrawn. Even if both parties agree that the notice is withdrawn, service of the notice terminates the existing lease and creates a new tenancy by implication. There are a number of consequences that flow from this. The first relates to security of tenure. As the contracting out procedure has not been followed the tenant may acquire security of tenure under the provisions of the Landlord and Tenant Act 1954 (the ‘1954 Act’). Secondly, a guarantor of the original lease would be released from its obligations when the new tenancy is created. You should also bear in mind that any rent deposits given pursuant to the original lease would not be available for the landlord to be drawn down on in the event the tenant incurs arrears under the new tenancy.
What should you do?
Doing nothing may be an option if the lease is within the security of tenure provisions of the 1954 Act and there are no guarantors or rent deposits. In order to avoid uncertainty, we advise that a new lease and rent deposit deed (if applicable) are entered into with the consent of the guarantor. Or, if the guarantors obligations are contained in separate security documents, the guarantor should be asked to enter into new documents in respect of the new lease.
New Law for Designers Finally Announced by the Government
The Government announced in the Queen’s Speech that it will introduce an Intellectual Property Bill to make changes to the law of designs and patents. The contents of the Bill will implement changes to designs law that were recently announced in the Government’s response to its own consultation and included, among other measures, the introduction of criminal penalties for infringement of registered designs; the tying of the concept of “commonplace” to a specific geographical area; and a change of first ownership of design right from the commissioner to the creator of a design. In relation to procedure, the Bill contains provision for a new opinions services for infringement of registered designs and a new, alternative path of appeal from decisions of the Intellectual Property Office, to the Appointed Person rather than the High Court. On the patents side, the Bill will provide for the establishment of part of the central division of the Unified Patent Court of First Instance in London and local divisions within the UK. To keep you advised on the progress of the Bill and to advise you on its ramifications, especially for designers, contact Christopher Evans of Druces LLP’s Corporate & Commercial team.
Government responds to designs consultation
The Government has published its response to its consultation on improving the framework for UK design law. Among the key proposals set out in the response are the retention of UK unregistered design right (UDR), the redefinition of UDR to prevent claims being based on very small parts of articles, the tying of commonplaceness to a specific geographical area, and changing the first owner of a design from the commissioner to the designer. On enforcement, criminal sanctions for deliberate copying will be introduced and the Appointed Person route for appealing against Intellectual Property Office decisions will be made available as an alternative to the High Court.
While the retention of UDR is unsurprising, it is debatable whether its redefinition will lead to a serious change in the way in which designs cases are run. Changing the first owner of a design from the commissioner to the designer, however, should help simplify the system, and represents a welcome harmonisation with EU rules and domestic copyright legislation. Nevertheless, doubts remain over whether the introduction of criminal sanctions will serve a useful purpose, given the lack of resources available to trading standards agencies. At present, there does not appear to be any timetable for implementing the proposals. For more information on the current systems of design protection contact Christopher Evans, a Consultant in Druces LLP’s Corporate & Commercial Team.
House of Lords approves employee shareholder scheme after Government concessions
The Growth and Infrastructure Bill and the Enterprise and Regulatory Reform Bill have been passed by the House of Lords, after the Government made a number of amendments to its employee shareholder scheme and agreed to outlaw caste discrimination and retain the ‘general duty’ of the Equality and Human Rights Commission (EHRC). The Bills will now proceed to receive Royal Assent.
The House of Lords approved the Government’s new ‘Employee Shareholder Scheme’ following a number of Government amendments, which were as follows: The first amendment states that a company wanting to use the scheme must provide an individual with a written statement of the particulars of the status of employee shareholder, which specifies the employment rights he or she will give up and detailing the rights, restrictions and other conditions attached to the shares. The statement will set out whether the shares have any voting or dividend rights; whether the shares can be bought back or redeemed; whether the shares can be freely sold; and whether certain other rights and restrictions are attached to them. This written statement of employee shareholder particulars will be in addition to the statement already required by S.1 of the Employment Rights Act 1996 setting out the terms and conditions of the job within two months of starting work.
The second amendment to the scheme requires an individual, once he or she has received the written statement of particulars, to be given independent advice as to the terms and effect of entering into the scheme. Unless independent advice is received, and the individual has been given seven days to consider the advice, the agreement will have no effect in removing his or her employment rights. Acceptance of an employee-shareholder contract within that seven-day period will also have no legal effect. Independent advice on the employee-shareholder agreement can be given by a solicitor, a barrister, a fellow of the Institute of Legal Executives employed by a solicitors’ practice, a certified trade union official or a certified adviser in an advice centre.
Under the amended scheme, even if the individual decides not to take up the job offer, the company will be required to meet the ‘reasonable costs’ of the advice. The Government has said that it will use the Finance Bill, which is currently going through Parliament, to introduce an exemption within the benefits-in-kind legislation to ensure that the requirement to provide independent advice will not lead to a tax cost on individuals considering becoming an employee shareholder.
The House of Lords accepted the Government’s decision to amend S.9(5) of the Equality Act 2010 so that it must legislate, following a period of consultation, to insert caste as a subsection of the protected characteristic of race.
OFT investigates exploitation of children by in-app sellers
The OFT has launched an investigation into whether marketing for children’s online games which encourages children to make “in-app” purchases breaches the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277). An “in-app” purchase is a purchase of additional content, features or functionality in an online application (app) such as a game. Typically, the game app itself is offered free to the consumer, with revenue generated from in-app purchases. The OFT is now investigating if the full cost is transparently advertised before the game app is downloaded, as failure to do so is potentially an unfair commercial practice under the Regulations. It is also examining whether children are encouraged to make in-app purchases or pester their parents to do so, potentially in breach of paragraph 28 of Schedule 1 of the Regulations which ban “direct exhortations” to children. The deadline for submissions to the OFT is 28 June 2013. The OFT will publish the outcome of its investigation by October 2013.
Please contact Christopher Evans of Druces LLP’s Corporate & Commercial team for further information.
Getting money back for the creative sector – Government concessions on Corporation Tax
The government has published revised draft regulations setting out the cultural test that a company must pass to qualify for the new corporation tax reliefs for high-end television production, animation production and video game development included in the Finance Bill 2013. The original draft of the regulations was published in December 2012. The revised draft regulations contain changes intended to reflect the consultation responses and to respond to the request of the European Commission, which has approved the relief for television programmes but is to investigate the relief for video games. As well as amendments to terminology (including the personnel involved in video games development), the changes include an amended method of awarding points and more restrictive rules on the way points must be distributed. The draft regulations have been published so that those potentially seeking relief can assess their eligibility.
Proposed changes to Employee Rights and Status
On Tuesday 16 April 2013 the House of Commons voted to reinstate clause 27 of the Growth and Infrastructure Bill, creating a new ‘Employee Shareholder’ status, following its defeat in the House of Lords last month. The proposal is that in exchange for shares, an employee owner will give up their employment rights in regard to unfair dismissal; redundancy; the ability to request flexible working and time off for training; and the ability to give only eight weeks’ notice of a firm date of return from maternity leave, instead an employee owner will be required to provide 16 weeks’ notice.
The government plans to introduce the new “employee shareholder” employment status with effect from 1 September 2013. In return for giving up the above rights the “employee shareholder” will receive shares (worth at least £2,000) in consideration of becoming an “employee shareholder” and will enjoy a capital gains tax (CGT) exemption on disposals of such shares (worth up to £50,000 when acquired). Legislation to amend the Employment Rights Act 1996 to introduce the new employment status was originally included in the Growth and Infrastructure Bill 2012-13, but was deleted at the Bill’s third reading in the House of Lords. The House of Commons has now re-instated it, so everyone will have to see over the next few months how the scheme is going to work in practice, once the government releases further details ahead of the launch on 1 September 2013.
High Court decision on extended passing off
The High Court has upheld a claim for extended passing off brought by the producers of “Total Greek yoghurt” against the producers of a yoghurt product made in the US and sold in the UK as Greek yoghurt. The court held that a substantial proportion of buyers of the product described as Greek yoghurt believed that it came from Greece and that it mattered to them that it did. It was irrelevant that Greek yoghurt buyers formed a modest proportion of yoghurt eaters as a whole. It followed that the defendants’ description of their product as Greek yoghurt was a misrepresentation which was likely to lead to the erosion of the distinctiveness of the phrase Greek yoghurt. The decision provides clarification that the consumers, in the minds of which a product class denoted by a trade name needs to be defined, need not be the whole or even a majority of the public, but need only be a significant section of it (which might be a modest one) for a claim in passing off to be made out. It also provides yet another reminder that survey questions need to be carefully crafted, with their possible responses worked through, to ensure that they have probative value. Fage UK Ltd and another v Chobani UK Ltd and another  EWHC 630 (Ch), 26 March 2013. If you feel that your rights have been damaged by a passing off like this or if you need help drafting or reviewing survey questions then contact Christopher Evans.