Knowledge

In the case of Holt v EB Security Ltd, the Employment Appeal Tribunal (“EAT”) in a surprising decision has confirmed that continuity of employment is preserved when an employee is absent from work at one employer due to a temporary cessation of work, and then starts different work for an associated employer.  When the Claimant was then dismissed by the associated employer, he had the requisite length of service entitling him to claim unfair dismissal in the Employment Tribunal.

Local authorities in Scotland have powers has to take certain land that they hold for the benefit of a local community, known as “common good land”, and use it for a purpose other than the purpose for which it is being held.A recent Court of Session appeal, Portobello Park Action Group Association v The City of Edinburgh Council, has clarified the scope of these powers in circumstances where a proposal by the City of Edinburgh Council to build a new high school on Portobello Park in Edinburgh was challenged by a local action group.

As 2013 approaches we will begin to see an increased focus on a low carbon economy with the introduction of the Government’s Green Deal potentially changing fit-out requirements within private and commercially let property, and increased focus on low carbon cities seeing a public sector led, city-wide, carbon reduction programme and a potential move towards decentralised energy across the UK. 

When calculating the period of time under a lease, or other contractual document, care must be taken to specify when the period will start and when it will end.  In the absence of clear wording the general principal of civilis computatio, which is that when calculating a period of time, the first day is to be excluded, and the last date is to be included, will apply. In the recent Scottish case of Calmac Developments Limited v Wendy Murdoch, the court considered this principal in the context of a short assured tenancy.

Jesse J singing “it’s not about the money” at the closing ceremony of 2012 Olympics is apt when considering the “greening” of the Olympics. Olympic “projects” with Olympic-sized public budgets ought to be able to raise the bar for green and sustainable development. As the baton is handed to Rio 2016, with a promise to focus on nature preservation and urban legacy, it is worth distinguishing how green the 2008, 2012 and 2016 Olympics are as projects, how green “legacy Olympic projects” are (or will become) and the wider green impact and benefit of the Olympics as a whole. 

Perhaps if empty seats at venues reflect an attempt to cut carbon omissions that otherwise might have been created by spectators travelling to the Olympics!

The precise extent of all land that is included within the extent of a public road can be a critical issue for developers where a proposed development site requires an access route to be constructed between the development site itself and the public road, over an area of land that arguably could be within the extent of the public road, but the recent case of Morston Whitecross Limited v Falkirk Council [2012] CSOH 97 has shown that the extent of a public road may not be as far as you might think.

When serving a notice under a lease, such as a rent review notice or break notice, care must be taken to ensure that the requirements of the relevant lease provisions are met and that the terms of the notice are correct.  A mistake in serving the notice, or an error in its terms, may render it invalid.  In the recent Scottish case of Prow v Argyll and Bute Council, the court considered whether rent review notices had been validly served under the lease between the parties.

The pensions industry has responded to concerns about poor practices being adopted in pension incentive exercises by issuing a Code of Good Practice.  This voluntary code recognises that incentive exercises can remain a valid option for some members but seeks to improve the standard of such exercises to help ensure that members can make informed decisions and better choices. 

The Association of International Petroleum Lawyers (AIPN) has released the 2012 version of the Model International Joint Operating Agreement (JOA). The new JOA contains some important changes to the previous version published in 2002, and reflects recent developments in Health & Safety and Anti-Corruption law. 

Location is of key importance to major retailers, so there is likely to be consternation if a rival store looks set to appear in the same patch.  Not all concerns of this kind escalate to the Supreme Court, but Tesco’s application for judicial review of a decision by Dundee City Council did just that.

The recent case of Pinecraven Construction (Guernsey) Limited v Taddei in the Court of Session, serves as a reminder to sellers and builders alike that, in the current economic climate, purchasers are continuing to explore innovative ways to try and free themselves from their contractual obligations. 

At a time when heads of terms for leasing transactions are taking longer to get into an agreed format, and less time is left for putting a contract in place, there are four key areas where time spent at the heads of terms stage could save valuable time when the contract is being negotiated.

It is perhaps unsurprising in the current economic climate that there have been numerous cases before the Courts concerning the interpretation of contracts relating to land. As parties seek to interpret the contractual terms to their commercial advantage, the legal principles that apply to contracts for the sale or other disposition of interests in land have become the focus of judicial debate and commentary.  Two recent cases reveal the difficulties that can be faced when a dispute arises and the contract does not meet the criteria required by the legislation.

The maxim of ‘approbate and reprobate’ reflects the principle whereby a person cannot both approve and reject an instrument, often more commonly described as blowing hot and cold, or having one’s cake and eating it too.  It began life in Scots law as part of the general doctrine of homologation, and refers to the implied assent to an imperfect deed, contract or settlement, which is to be inferred from circumstance.  For further discussion on this, see Personal Bar, Reid and Blackie, 1st ed, 2006, para. 1-11.

The Energy Act 2011 deals with securing energy supplies and the regulation of renewable energy resources.  It also sets out the framework to facilitate the “Green Deal” to be launched, with the support of secondary legislation this coming Spring.  

In the recent case, Berrisford v Mexfield Housing Cooperative Limited [2011] UKSC 32, a seven judge decision from the Supreme Court relied on 16th century case law and a provision of the Law of Property Act 1925.  In the various summations, some interesting contractual scenarios were explored.  

When a landlord requires to terminate a lease because of a tenant’s failure to comply with its obligations under the lease, the landlord needs to follow the procedures for irritating leases set out in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.  Compliance with the statutory provisions about the drafting and service of irritancy notices is essential, and the recent case of Stephen and Susan Scott v Graham Muir and Maureen Bain in Edinburgh Sheriff Court serves as a salutary reminder to landlords of the importance of strict observance of the statutory requirements.

In yet another case concerning holidays, the Supreme Court has handed down its decision in Russell and ors v Transocean International Resources Ltd and ors, confirming that the statutory holiday entitlement of offshore workers is satisfied by the provision of regular onshore ‘field breaks’.

In the current climate it is becoming increasingly common in sales and purchases of land for development to incorporate overage provisions, also known as “uplift” or “clawback” clauses – the purchaser pays an initial purchase price, and then potentially further sums are payable to the seller in the event that the property is transferred on for a profit.

The UK Supreme Court is the final civil court for cases in both Scotland, and England and Wales, and in matters of property law, the judges will find themselves having to consider what are often very different legal principles and regulations, depending on the jurisdiction. However, this knowledge of the law in the other jurisdiction can help to identify flaws in current laws or practice, and, in the recently decided case of Berrisford v Mexfield Housing Cooperative Limited [2011] UKSC 32, as well as relying on 16th century case law and a provision of the Law of Property Act 1925, the Supreme Court highlighted the different common law and legislative provisions under Scots Law, which, had they applied in England and Wales would have made their decision a lot easier.

The adoption of the Regulation on Energy Market Integrity and Transparency (REMIT) by the European Council on 10 October 2011, will for the first time ever, lead to the introduction of the regulation of wholesale energy trading taking place at an EU level.  REMIT will seek to prevent (and detect) market abuse (or more specifically, market manipulation and insider trading) in the wholesale energy sector.  As national regulatory authority (NRA) in the UK, Ofgem will have responsibility for enforcing the prohibitions in the UK.

Planning permissions must be implemented within strict time limits unless expressly agreed otherwise with the Planning Authority.  One symptom of these difficult economic times is that certain planning permissions may not be capable of being built out until the economy improves.  It seems sensible, therefore, to safeguard the planning permission by implementing the permission so that, in time, it can be fully built out.

Title to most properties in Scotland is subject to a variety of burdens and conditions that affect the things that the owner may and may not do at the property.  For example, a condition in the title may impose obligations on the owners to carry out certain operations, such as maintenance, or it might impose limitations on how that property can be used.  But a title condition that burdens a property is only of relevance if there is someone (or more than one) who has the right to enforce compliance of the burden.  This might be the owner of a neighbouring property, whose amenity the b