Changes have been made to the following enquiries and their respective guidance notes:
The words in bold have been deleted:
"Does the Property, or any property over which Rights are enjoyed, include any land that is open or unfenced and that is currently used or has in the past ten years been used by members of the public for recreational purposes, whether with or without your permission?"
The reason for this change is to broaden the enquiry and not limit it to land that is open or unfenced.
GN/CPSE.1 has been amended to:
Reflect the fact that section 15 of the Commons Act 2006 (www.practicallaw.com/3-203-5384) (CA 2006) came into force on 6 April 2007.
Provide a more detailed explanation of the provisions of section 15, under which applications can be made to register land as a town or village green.
For details of what section 15 provides, see Practice note, Common land and town and village greens: Registration of new town and village greens (www.practicallaw.com/3-107-3956).
The text in the following box, provides an explanation of section 15 and is the new text that has been added to version 2.5 of GN/CPSE.1.
In outline, section 15 of the CA 2006 provides that anyone can apply to register land as a town or village green where "a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years" and one of the following three circumstances applies:
If members of the public were prohibited by statute from accessing the land for any period (for example, due to an outbreak of foot and mouth disease), this period will be disregarded when assessing the 20 years' use required by section 15 of the CA 2006 (section 15(6) CA 2006). Section 15(4) has caused controversy amongst landowners and developers. The effect of this section is that a potential development site may be open to registration as a town or village green, even though it has not been used for such purposes for up to five years before 6 April 2007. To illustrate: In March 2006, X bought a piece of land for development. X's search of the commons register showed that there were no entries affecting the site. In July 2006, X submitted an application for planning permission in respect of the development. In August 2006, the inhabitants of the nearby village applied to register the land as a village green, claiming that it had been used as of right by the villagers for sports and pastimes for over 20 years, from August 1980 until August 2002. Even though the villagers had not used the land for four years, their application to register the land as a village green may succeed under section 15(4) of the CA 2006. Even after the five-year "period of grace" ends in April 2012, the provisions of section 15(3) allow a two-year period of grace in which an application for registration may be made. These provisions place developers in a difficult position because of the risk that local inhabitants may claim rights over the land of which the developer was previously unaware. The Government's view is that in the majority of cases, the landowner will know whether the past use of the land is capable of supporting a claim for registration as a green. This is based on the assumption that in most cases it will be the landowner who has prevented the use of the land "as of right". However, the provisions in section 15(3) and 15(4) also apply if the local inhabitants have simply ceased to use the land. The Government's advice is that developers should seek assurances when buying land that it has not been used for purposes that may support a claim for registration as a green. In reality, the seller may have owned the land for a short period of time and be unaware of any such use prior to their period of ownership. Sellers may also be reluctant to provide such assurances. Where the developer is unable to obtain unequivocal confirmation that the land does not qualify for registration as a green, the developer faces the dilemma of either not buying the land, buying the land and waiting for the period of grace to expire before developing the land or proceeding with the development immediately and bearing the risk of potential registration as a town or village green. Enquiry 4.7 asks whether the Seller has any knowledge of recreational use of the Property by local people within the preceding period of ten years. This is a much longer period to enquire about that is necessary but, by erring on the side of caution, it is more likely that relevant information will be elicited where memories may be uncertain. A positive answer will put the Buyer on notice that an application for registration of a green may be likely. Where no useful information is forthcoming as a result of this enquiry, the Buyer will need to consider making further investigations to establish the likelihood of an application for registration as a green. |
Enquiry 8.3 has been amended to include reference to regulation 4 of the Control of Asbestos Regulations 2006 (www.practicallaw.com/9-205-5251) (CAR 2006).
With effect from 13 November 2006, regulation 4 of the CAR 2006 replaced, word for word, regulation 4 of the Control of Asbestos at Work Regulations 2002 (www.practicallaw.com/5-106-5757) (CAWR 2002), which came into force on 21 May 2004 and created a significant duty to manage asbestos risk in "non-domestic premises".
For details, see Practice note, Control of Asbestos (www.practicallaw.com/7-107-4906).
Enquiry 8.3 asks the Seller to supply a copy of the most recent survey or assessment carried out in relation to the Property for the purposes of complying with either regulation 4 of the CAR 2006 or regulation 4 of the CAWR 2002. The most recent report may have been prepared under the CAWR 2002, which is why both sets of regulations are referred to.
The notes on Enquiry 8 in version 2.5 of GN/CPSE.1 have been amended to refer to CAR 2006 and include the above information.
Enquiries 14.4 and 14.5 have been amended to include reference to The Construction (Design and Management) Regulations 2007 (www.practicallaw.com/3-219-4981) (CDM 2007), which came into force on 6 April 2007.
The CDM 2007 replace the Construction (Design and Management) Regulations 1994 (CDM 1994). It is important to appreciate that the CDM 2007:
Apply to all construction projects as from 6 April 2007, even if the construction project had already started before that date.
Have a much broader application that the CDM 1994.
For more information, see Practice note, The Construction (Design and Management) Regulations 2007 (www.practicallaw.com/0-207-2306).
Version 2.5 of GN/CPSE.1 has been amended to refer to the CDM 2007 and explains that:
The objective of the CDM 2007 is to build on the improvements made by the CDM 1994 and further improve management, information and co-ordination of work on site. "Construction work" has a similar meaning in both the CDM 1994 and the CDM 2007 but under the CDM 2007 "construction work" includes: "construction, alteration, conversion, fitting out, commissioning, renovation, repair, upkeep, redecoration or other maintenance (including cleaning which involves the use of water or an abrasive at high pressure or the use of corrosive or toxic substances), de-commissioning, demolition or dismantling". Construction work also includes installing or removing, for example, mechanical and electrical equipment or telecommunications equipment (regulation 2(1), CDM 2007).
Subject to specific exceptions, the CDM 1994 applied to all construction work carried out between 31 March 1995 and 5 April 2007. The CDM 1994 did not apply to small projects where the number of people working on the project at any one time was not expected to exceed four and the project was not expected to last longer than 30 days.
The CDM 2007 apply to all construction work, including small projects. There are limited exceptions relating to mineral extraction works. The CDM 2007 include transitional provisions for construction projects that were started under the CDM 1994 and continued under the CDM 2007.
Enquiry 14.5 requests confirmation that any Health and Safety file has been compiled and maintained in accordance with the CDM 2007 or the CDM 1994. This is because the Health and Safety file may have been compiled before the CDM 2007 came into force. If no new works have been carried out since 6 April 2007, then the Health and Safety file would not have been needed to have been updated under the CDM 2007. Any new works carried out on or after 6 April 2007 would require the Health and Safety file to be amended in compliance with the CDM 2007.
References to section 839 of the Income and Corporation Taxes Act 1988 have been amended to include reference to section 993 of the Income Tax Act 2007 (www.practicallaw.com/2-242-0970).
Changes have been made to the following enquiries and their respective guidance notes:
An amendment has been made to Enquiry 9.1 of CPSE.2 to make reference to the Housing (Tenancy Deposit Schemes) Order 2007 (www.practicallaw.com/5-237-5952) (2007 Order).
Enquiry 9.1 asks the Seller for details of any arrangement under which a sum is deposited by a Tenant as security for, or on account of, payment of rent or performance of any obligation. This would include details of Tenancy Deposit Schemes under the 2007 Order, but to draw the Seller's attention to the 2007 Order, the following additional words are added:
"(including, in the case of an assured shorthold tenancy, arrangements under the Housing (Tenancy Deposit Schemes) Order 2007)."
Tenancy Deposit Schemes were created under the Housing Act 2004 and are intended to prevent landlords failing to return tenant's deposits and also to ensure landlords are not left out of pocket when a tenancy expires and a tenant abandons the property. The 2007 Order provides for two different types of scheme: custodial and insurance. As from 6 April 2007, it is compulsory in relation to an assured shorthold tenancy, for a landlord to protect a tenant's deposit using one of the approved scheme administrators.
For more information, see Practice note, Tenancy Deposit Schemes (www.practicallaw.com/9-238-2955).
Enquiry 10.12 has been amended to include reference to regulation 4 of the Control of Asbestos Regulations 2006 (www.practicallaw.com/9-205-5251) (CAR 2006).
With effect from 13 November 2006, regulation 4 of the CAR 2006 replaced, word for word, regulation 4 of the Control of Asbestos at Work Regulations 2002 (www.practicallaw.com/5-106-5757) (CAWR 2002), which came into force on 21 May 2004 and created a significant duty to manage asbestos risk in "non-domestic premises".
Enquiry 10.12 refers to both the CAR 2006 and the CAWR 2002 because the Seller may have relevant information from before 13 November 2006, prepared in relation to the CAWR 2002.
For more information, see note, Enquiry 8.3.
GN/CPSE.2 has been amended to reflect this information.
