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Housing & Regeneration

A quarterly newsletter keeping the social housing sector informed of the latest legal news and developments.

Latest Issue

In our latest issue of Housing and Regeneration News Alistair Fletcher looks ahead with his predictions for what 2017 has to offer, whilst we also look back at the success of the recent North West Housing Conference plus other news which we hope you will find of interest.

Season's Greetings: The Housing and Regeneration team would like to take this opportunity to extend our thanks to all our clients and contacts who have worked with us over the last year. We hope that we have helped to guide you through the issues that matter to you and that you will allow us to help you realise your ambitions in 2017 and beyond.

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Predictions for 2017... What does next year hold for the housing and regeneration sector?

Friday 16th December 2016

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Housing and Regeneration News - December 2016

Consolidation, Deregulation, Development.

These are the buzz words for 2017 in the housing and regeneration sector, according to Alistair Fletcher, Partner and Head of Housing and Regeneration at Brabners.    
“This time last year, we had Cameron-Osborne housing policies and a fairly hard attitude towards RPs, Brexit was a possibility but not a probability in the Referendum and the government’s strategy for more home ownership was being driven through VTRB and targeted  grant aid,” comments Alistair. “What a difference a year makes”, he adds, continuing “yet many challenges have remained constant and won’t go away.”
At the heart of everything, though, is a UK-wide challenge: how do we deliver more new housing to meet the significant shortfall which currently exists?
Let’s examine our predictions for 2017 in more detail.
Consolidation:  the government’s enforced rent reduction combined with the Regulator’s drive for value for money precipitated various examples of mergers, acquisitions and new ways of working in 2016. Every RP was challenged to reduce expenditure and this resulted in new governance models, collaborative buying groups (e.g.: CHANW) and diversification of activities. We anticipate seeing more of this in 2017 with further consolidation within the sector and RPs becoming less risk-averse and using non-RP subsidiaries for commercial development, open market sales, and private market rent to generate additional funds.     
Deregulation: the government’s reaction to the Office for National Statistics announcement in October 2015 that RPs are public bodies can only be described as one of shock and horror! Steps were quickly taken to start the process of deregulation which is likely to be completed in April of next year. With this, though, comes a change in the nature and role of the HCA. What will the HCA of the future look like once RPs need only to provide ‘notification’ (not seek permission) for disposal of land and amendments to their constitutions? The DCLG consultation paper on the use of a Legislative Repairs Order to establish the social housing regulator as an independent body published on 30th November clearly anticipates a separate regulator.    
Development: 2016 was dominated by the government’s drive for home ownership. However, this emphasis on shared ownership has exacerbated a north-south divide with shared ownership generally successful in London and the south, yet problematic in large areas of the north.   
Voluntary Right To Buy was, of course, introduced through pilot schemes earlier this year. With the first phase of these pilots now coming to an end, there is unlikely to be any real progress until early 2018 when the second phase of pilot projects have been completed.   
However, we can’t get away from the fact that we have a shortfall of over half a million homes and, while 84% of people would like home ownership, only 64% believe they will actually achieve it1. It’s been described as ‘the defining challenge of our generation’2. While interest rates are at an all-time low, house prices relative to earnings are still 50% more expensive than a generation ago1. So, what progress can we realistically expect to see in 2017? How will “Homes for all” be delivered? How can we provide the right properties in the right places? This is the challenge that faces the country in 2017 and RPs will play a leading role in delivering the solution.
This sector is all about people, though, and, while RP’s provide the ‘bricks and mortar’, they also have a wider role. We will see continuing pressure on supported housing and the care sector, the need for the NHS, housing sector and partner agencies to be ‘joined up’, and sadly more homeless people on our streets. Ever a challenge, these issues will put further strain on RPs at a time when the 1% rent reduction on supported housing comes into effect on 1 April 2017 and will ‘bite’. On the positive side, though, Gavin Barwell is taking encouraging steps as Housing Minister in such areas as Pay to Stay (which has been abandoned, rightly so in our view). 2017 will also bring our first real examples of how the Courts apply the new Mandatory Grounds for Possession and, no doubt, Human Rights and other challenges will follow.
Ending where I began, I believe the sector will continue to feel the pinch as the two separate rent reductions really bite, the regulator continues to demand greater value for money (and evidence of this being delivered), and uncertainty in the UK’s future economic environment.
Need advice or wish to talk to us?
If you would like to discuss any housing matters or how we may help you realise your ambitions through 2017 please do not hesitate to contact me.
Head of Housing and Regeneration
Tel: 0151 600 3082



1Council of Mortgage Lenders    2Gill Payne, Director of Policy, National Housing Federation

Reform of data protection law - steps to take now

Friday 16th December 2016

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Housing and Regeneration News - December 2016

Preparing for the General Data Protection Regulation 
What is the Regulation?
The European Parliament has introduced a General Data Protection Regulation (GDPR) by way of reform of EU Data Protection Law. 
The GDPR replaces the current Data Protection Directive, which was implemented into UK Law through the Data Protection Act 1998.
As the GDPR is a Regulation, rather than a Directive, it will be immediately binding on all EU member states immediately once in force. 
When does GDPR become law?
Consultation began in 2009 in recognition of the new challenges for personal data protection, particularly in light of new technologies and globalisation. 
The implementation date for GDPR is 25th May 2018.   
Implications of BREXIT
The Information Commissioner’s Office (“ICO”) has said that the Government needs to consider the impact of BREXIT on the GDPR.
However, the GDPR cannot be ignored for the following reasons:
  • We do not know the date that the UK will leave Europe.  We will however still be in the EU come the implementation date of 25th May 2018. 
  • Whilst the implementation date is still some time off, there may be a lot to do for organisations (especially large organisations) to ensure they are in a position to comply with the law once in force.
  • GDPR is still relevant when outside of the EU for organisations operating internationally.
  • The ICO is of the view that reform of the UK law remains necessary in any event.
The GDPR presents a much more detailed framework and introduces some new principles and concepts. 
Whilst the principles of the GDPR are similar to the principles under the Data Protection Act, there are some enhanced obligations. 

Steps to take now

The ICO has published guidance on steps that data controllers (which will include RPs) should be taking now in order to prepare for GDPR.
These include:
  1. Ensuing that decision makers and key people in your organisation are aware that the law is changing and to appreciate the impact this is likely to have.
  2. Organise an information audit to document what personal data you hold, where it came from and who you share it with.
  3. Review current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.
  4. Check procedures to ensure they cover all the rights individuals have.
  5. Update procedures in relation to subject access requests.
  6. Look at the various types of data processing you carry out, identify your legal basis for carrying it out and document it.
  7. Review how you are seeking, obtaining and recording consent and whether you need to make any changes.
  8. Consider how you collect information in relation to children.
  9. Make sure you have the right procedures in place to detect, report and investigate data protection breaches.
  10. Familiarise yourself with the guidance the ICO has produced on privacy impact assessments and work out how and when to implement them in your organisation.
  11. Designate a data protection officer within your organisation to take responsibility for data protection compliance.
  12. If your organisation operates internationally, determine which data protection supervisory authority you come under. 
Need advice or wish to talk to us?
If you would like more information about these changes or how we can help you with any other housing matter please contact:
Associate, Housing & Regeneration
Tel: 0151 600 3094


Proportionality and Second Succession: How long is long enough in occupation?

Friday 16th December 2016

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Housing and Regeneration News - December 2016

In this article we look at the recent case of: Holley v Hillingdon LBC [2016] EWCA Civ 1052
November 01, 2016, Arden, Underhill and Briggs LJJ

The Court of Appeal has held that the length of a person’s occupation of his home is relevant to a proportionality assessment under Article 8, European Convention on Human Rights, but that it is unlikely to be given any weight in second succession cases. Josephine Morton and Elke Kendall look at the case and the facts behind the decision.

The Facts

Mr Holley (the Appellant) had lived at the property, 46 Westwood Close, London HA4 7RE (“the Property”) for over 30 years. The Property was originally held by Mr Holley’s grandmother under a secure tenancy. When his Grandmother passed away the Property passed by succession to her husband, the Appellant’s grandfather.

As there had already been a statutory succession under the tenancy the Appellant had no legal right to an interest in the Property and Lord Justice Briggs stated that he was, “in the rather antiquated private law jargon relevant to this case, a trespasser at the property”.

In January 2014 at the County Court at Willesden a possession order was granted against the Appellant and his brother, Ashley Sinfield. The order was granted on the basis that there were no seriously arguable defences under Articles 8 and 14 of the ECHR. HHJ Karp based her decision on Etherton LJ in Thurrock Borough Council v West [2012] EWCA Civ 1435 and agreed that the length of occupation at a property could not be a factor in the decision as to whether Article 8 had been breached in cases where there was no legal right of occupation.

The Appeal

The Appellant appealed the decision on two grounds, both of which were allowed:

1)    The Judge was wrong to have not taken the length of time the Appellant had lived at the property into account when considering his Article 8 defence; and

2)    Hillingdon LBC had unlawfully fettered their discretion under HA 1996 Pt 6 by placing an age limit on when they would consider second succession cases.

The Court of Appeal (COA) agreed with the lower court’s decision aside from one point. COA rejected that Thurrock v West determined that the length of time an occupant had resided at the property would never be relevant in second succession cases.

Instead, the COA determined that the length of time in occupation may be taken into consideration, although stated that it is unlikely to be a weighty factor. It has previously been held by the courts that the second succession rules are lawful and comply with Article 8.

The COA said that length of occupation would be relevant in that the occupant must demonstrate a minimum length of residence to show that the property is their home in order to engage Article 8(1).

In regards to the fettering of discretion, Hillingdon’s policy on second succession included provision on exceptional cases when this would be allowed. The Appellant was not old enough to be considered under the policy and this is where he argued Hillingdon had fettered their discretion by not considering the other factors, namely his length of residence and his mental illnesses.

Hillingdon argued that even if they had of applied their exceptionality rules in place for second succession cases they would not have granted the Appellant the Property. The COA agreed that the Appellant’s case had nowhere near the degree of exceptionality required to give a real possibility of success under Hillingdon’s residual discretion.

Because of the COA’s finding on this point the question of whether there had been unlawful fettering of their discretion under HA 1996, Part 6 remains unanswered. Arguments from the Appellant referenced the decision in R (Ahmad) v Newham LBC [2009] UKHL 14 but it was rejected that this was relevant to the Appellant’s case as that decision was regarding rationality and not unlawful fettering.

What does this mean for you?

As a registered provider of social housing you should know that length of time in occupation can be a consideration in regards to a proportionality assessment when granting a second succession. That being said, LJ Briggs made it clear that length of occupancy alone would not be enough to consider an eviction disproportionate, it may only be considered in light of other factors and is not likely to hold that much weight.

A definitive answer was not given on whether Hillingdon’s criteria used for deciding whether second succession will be allowed failed to allow for enough residual discretion. RPs should be careful to follow your policies and procedures in considering all factors in a case rather than blindly applying a set of “tick-box” criteria.

Need advice or wish to talk to us?

If you would like help reviewing your policies in this area please do not hesitate to get in touch with us.

Associate, Housing & Regeneration
Tel: 0151 600 3094
Trainee Solicitor, Housing and Regeneration 
Tel: 0151 600 3149

Shared Ownership - a solution to the housing crisis? A look at the advantages and disadvantages.

Tuesday 1st November 2016

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Housing and Regeneration News - November 2016

Nigel Williams, partner in our Housing and Regeneration team, takes a look at the shared ownership option as a solution to the housing crisis. As well as the advantages, Nigel also outlines some of the significant disadvantages which need to be understood by the shared ownership owner.

Home ownership is becoming inaccessible for increasing numbers of people with increases in house prices outstripping any increase in wages. House prices (especially in London) are continuing to rise quickly. The private rental sector has doubled in size since 2000 and currently accounts for over 18% of the total UK housing stock.

Shared ownership is proposed as one of the answers to the housing crisis. It is still, apart from a social tenancy, the cheapest way to secure a roof over your head.

After taking into account rent and mortgage payments the monthly cost of a shared ownership property is much less than owning a property outright. In areas of high demand such as large major urban conurbations it can be substantially cheaper than renting a private property of a similar size.

Shared ownership was introduced in the late 1970’s to help people unable to afford a home on the open market to get a foot on the property ladder. Building homes for shared ownership has since been prioritised by the government and social landlords.

In April this year the government relaxed the rules of eligibility and shared ownership became available to anyone with a household income of less than £80,000.00 or £90,000.00 in London. It has been estimated that this will enable an extra 175,000.00 more people to qualify for shared ownership.

However despite all the advantages and affordability of shared ownership there are some significant disadvantages for the shared ownership owner and housing associations.

The shared ownership model can cause significant problems. The documentation tends to be quite complex with numerous matters to be considered by the owner and its advisors. In a lot of cases the shared ownership owner is not made fully aware of the provisions of its lease and the significance of the various terms and conditions in such lease.

The shared ownership mortgage usually has a higher rate than the mortgages made available for straightforward home loans. There are only a limited number of lenders who will lend on shared ownership leases.

The detailed terms of the shared ownership leases need to be fully explained to the shared ownership owner prior to entering into the documentation.

Despite owning 25 or 50% of the property the owner must realise that it is responsible for all internal repairs and 100% of any service charge affecting the particular unit. This is something that is often a cause of complaints and frustration between the shared ownership owner and the Housing Association as these items are by their very nature variable and have to be paid for on top of the rent and mortgage payments and can be a substantial issue for the shared ownership owner to pay.

The shared ownership owner cannot exercise the “right to manage” a building of which their property forms part. It will always (and probably quite rightly) be run by the Housing Association. However the owners need to be made fully aware of the position prior to entering into the shared ownership lease.

The owner is at risk if he falls behind on rent payments. The owner could lose everything including his deposit if he defaults on the rent payments. Whilst repossessions are rare, this is something that needs to be borne in mind by both the owner and the Housing Association.

The owner needs to be aware that even if he has staircased to 100% the Housing Association will have first refusal to buy or to fully approve any potential new purchaser. This is done to preserve social housing but it does need to be fully explained to the shared ownership owner prior to completion of its documentation.

The restrictions on sub-letting need to be fully understood by the shared ownership owner. Many buyers have not fully considered this restriction on sub-letting prior to purchasing their shared ownership property. During any recession when values stagnate or fall shared ownership owners have not been able to sell their shared ownership property. In addition they have not been able to move from the property as they have not been able to sub-let and this has led to a lack of mobility. This restriction is clearly there to maintain social housing but has often in the past been an issue and has caused confrontation with the Housing Associations and their shared ownership tenants.

Too many shared ownership owners “part buy” their properties and then do not staircase or move. This prevents others from getting on the housing ladder and goes against the original purpose of shared ownership.

Selling up and moving from a shared ownership home is far easier if the owner owns 100% of the property. For many this is simply not possible to achieve.

The benefits of encouraging people to buy a larger stake in their property is fundamental. It would improve mobility and allow them to sell and move on and it would also raise money for the housing providers so it can be used for new homes.

On paper shared ownership is still the best answer for people left out of traditional ownership but it is still one that is not fully understood by the shared ownership owner. The owner needs to be made fully aware of all the benefits and all the liabilities of being a shared ownership owner.

If you would like to discuss any issues about shared ownership matters please do not hesitate to contact:

Nigel Williams

Partner, Housing and Regeneration team
Tel: 0151 600 3182

Supported housing and rent reductions: two technical questions answered

Tuesday 1st November 2016

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Housing and Regeneration News - November 2016

The Welfare Reform and Work Act 2016 (the Act) introduced rent reductions for social housing with effect from April 2016.

The government granted a one year moratorium for supported housing, which included sheltered housing. The Act described this as an “exception” to be introduced by regulations - The Social Housing Rents (Exceptions and Miscellaneous Provisions) Regulations 2016 (the Regulations). Anyone who struggled to read and understand the Act should have a look at the Regulations, which make the Act look like a model of clarity.

The government recently announced that the moratorium will not be extended and that supported housing will be subject to rent reductions of 1% pa starting in April 2017 and continuing for another two years (in April 2018 and 2019).

For general needs social housing, the base rent that was used to calculate the reduction was the actual passing rent as at 8 July 2015 (the day of the budget that announced rent reductions). Re-lets after that date were to be at the higher of the passing rent or formula rent at 8 July 2015, less any cumulative rent reductions. If the formula rent was used, there would be no 5% tolerance allowed by the Rent Standard. So (to borrow the Prime Minister’s favourite saying) “formula rent means formula rent”.

Before the Act, the Rent Standard allowed general needs housing rents to exceed formula rent by up to 5% and supported housing rents to exceed formula rent by up to 10%.

Two technical questions arise from the removal of the supported housing exception:

  • What is the base rent for the April 2017 reductions? Most supported rents were increased in April 2016 – will landlords lose the benefit of that increase?
  • Can landlords re-let at 110% of formula rent post-1 April 2017? Or is supported housing to be treated in the same way as general needs housing?

The answers to these questions are to be found buried deep in the Regulations.

Regulations 11(b) and (c) provide that the base rent for the April 2017 reduction is the 8 July 2015 rent adjusted as follows. It is uplifted by 0.9% (to reflect the April 2016 rent reduction) and then reduced by 1% in April 2017. 

The rent at 8 July 2015 was £100/week. This is increased to £100.90/week (the assumed April 2016 increase) and then reduced to £99.89/week in April 2017. In April 2018, it will go down by a further 1% to £98.89/week and in April 2019 to £97.90/week.
By contrast, a general needs rent of £100/week would have gone down to £96.06 by April 2019.

Regulation 11 (a) retains the 10% tolerance for supported housing rents in perpetuity by amending the Act. This applies to re-lets also as the re-let rent is calculated on the basis of formula rent as at 8 July 2015 plus up to 10%. So any post-1st April 2017 supported housing re-lets can be at the higher of or formula rent plus 10% the passing rent as at 8 July 2015 plus 0.95 and less accumulated rent reductions.

The answers to these questions provide two very small crumbs of comfort in the bleak world of rent reductions. 

If you would like to discuss any issues about rent reductions please do not hesitate to contact:
Partner, Housing and Regeneration team
Tel: 0151 600 3317

Making Development Agreements Work: An insight into the workshop at this year's North West Housing Conference

Tuesday 1st November 2016

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Housing and Regeneration News -  November 2016

If you are coming to the North West Housing Conference one of the eight workshops we have this year is about Making Development Agreements Work. Here, our experts who will be delivering this workshop, provide an useful insight for you.

An overview for Workshop F: Making Development Agreements Work

One of the principal development opportunities for social housing providers arises from developers who either have options on land or own suitable land but only wish to sell on condition that they also secure the construction work.

We will be looking at the issues that need to be considered and managed on these transactions. Some transactions will give rise to public procurement issues and we will explain how such issues can be simply managed without having to go through an OJEU procedure. It is also necessary to ensure that the transaction is structured in a way so as to minimise risk and ensure that the development is delivered to time and budget.

Our aim is to provide an overview of these transactions that will be of interest to development officers who have to manage the process of these transactions.

If you would like to know more about this workshop or to speak to us about any specific issues please do not hestitate to contact either:

Ian Hardman (Partner, Construction and Engineering), Peter Barlow (Partner, Housing and Regeneration) or Richard Hough (Partner, Commercial - Procurement specialist). 


Anti-Social Behaviour Injunctions for Under 18s and proceedings in the Youth Courts

Wednesday 12th October 2016

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Housing and Regeneration News - October 2016

While I am sure everyone is now getting used to the new procedures for adult Anti-Social Behaviour Injunctions which function along similar lines to the old ASBI and are applied for in the County Court, what about the situation where the perpetrator is under 18?

In this first of two articles we take a look at Making the Application outlining the key points you need to know about.

Part 1: Making the Application

Legislation changes

The Anti-Social Behaviour Crime and Policing Act 2014 introduced sweeping changes to the tool kit available to Registered Providers and Local Authorities to tackle ASB, not least of which was abolishing the ASBO (Anti-Social Behaviour Order). 

While the 2014 Act allows an application for an Injunction to be made as long as the Defendant is over 10 years old; the procedures and legislation for an application for Injunction against those under 18 are now far from plain sailing. 

Where to apply?

Applications for ASB Injunctions for Under-18s need to be made in the civil jurisdiction of the Youth Court which will sit at the local Magistrates’ Court.  Due to the ongoing closure of Magistrates’ Courts tracking down the appropriate local court can be a task in itself especially for practitioners used to dealing with the local County Court.

How to apply?

An application to the Youth Court must be made by way of laying a Complaint.  Frustratingly there is no standard document or Court form to use for a Complaint; however it must contain:

  • The name, address and date of birth of the Defendant.
  • The name and address of the Defendant’s parent or guardian.

It must state the terms of the Order being applied for and be supported by evidence of the alleged ASB.

You will also need to ask for a hearing date in advance and send to court a draft summons, a draft Injunction Order, the witness evidence on which you intend to rely and a Hearsay Notice if required. 

The summons and the rest of the paperwork must then be served on the both the Defendant and their parent/guardian.


If the Defendant is under 18 there is a requirement under the 2014 Act to consult with the local Youth Offending Team prior to making the application for the Injunction.  This does not mean you have to follow their advice, but you should take it on board and make an informed decision.

There is also a requirement to inform any other body or organisation considered to be appropriate.  This is much less specific than the previous ASBO legislation which set out clearly who should be consulted and so is potentially open to challenges.  Who is consulted in each case is a matter the applicant will need to consider carefully based on what they know about the potential Defendant and their family and could include: the Police, the Local Authority, Social Services, the local Drug and Alcohol Services and any other service who may be relevant.

Certificates of Consultation should be exhibited to the Lead Officer’s witness statement.

Court rules

There is no single place to find the procedure rules for a youth ASB Injunction. The Civil Procedure Rules do not apply to civil proceedings in the Youth Court and instead the rules are contained in a variety of acts, statutory instruments and old case law.  

This can make the whole process a mine field for the unaccustomed and we haven’t even looked at hearsay evidence, the hearing itself or the rules on reporting restrictions.

We will be looking at these issues in our Part 2 feature which we will publish in a future edition.

If you would like to discuss any issues about these developments in the ASB Injunctions please contact:

Garry Crawford

Housing Litigation Executive, Housing and Regeneration team
Tel: 0151 600 3357


North West Housing Conference - Friday 4 November 2016

Workshop A - Anti-Social Behaviour

Firmly established as one of the leading housing events in the region, the North West Housing Conference takes place on Friday 4 November. A must attend event for housing professionals, the conference will review the latest developments in policy and strategy and explore the economic realities facing the sector and will include a panel session called “Homes for All: Ownership v Rent” where delegates will have the opportunity to put questions to a panel of specialists from the social housing sector.

In the morning of the conference, Workshop A is all about Anti-Social Behaviour.  

Paul Burns, Barrister and Head of the Local Government & Social Housing Department – Exchange Chambers, and Josephine Morton, Senior Associate at Brabners, will be providing you with a roundup of recent developments in the law relating to ASB including the recent Court of Appeal cases dealing with cannabis farms.

Book your place - You can book your place and view all the workshops and full conference programme by visiting



Challenges for the Housing Sector post-Brexit

Wednesday 12th October 2016

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Housing and Regeneration News - October 2016

Of all the potential shocks to the UK economy that loomed in the aftermath of Britain’s vote to leave the EU, few seemed as dramatic as the impact on the housing market.

Prior to the EU referendum on the 23 June the European Investment Bank (EIB) through the Housing Finance Corporation (THFC) signed a deal to lend £1bn to the UK for affordable housing construction. This is the largest social housing loan the EIB has given and would support the building of 20,000 new homes in the UK. The EIB has been a major backer of UK social housing since the 1990s and the loan was a lifeline for the housing sector as social landlords have struggled to secure long term funding for development of affordable homes since the financial crisis. However, a spokesman for the EIB warned that the £1bn deal could be at risk should the UK vote to leave the EU on the 23 June stating “we would expect the bank’s engagement to be one of the many issues in any withdrawal negotiation”.

Although the EIB is mandated to invest to support EU policy goals in member states, it has made investments outside the EU but they are tiny investments in comparison.

From the EIB’s statements it looks like the THFC deal may be safe but the bank has made clear its plans for future direct lending of another £0.5bn would be in doubt following a Brexit vote.

So what does this mean for the housing sector now?

It is clear that housing has been hit by the economic uncertainty following the UK’s vote to leave the EU. Since the referendum billions have been knocked off the value of housing developers with new developments paused and planned purchases put on hold.

Housing sector leaders are urging the government to put a plan in place to increase public investment to tackle the housing crisis. One course of action available is to relax the unbalanced legislative and funding restrictions currently in place for government discounted starter homes and shared ownership schemes. Housing Associations are arguing that if they would be allowed to use some of the £7bn set aside to allow them to build affordable homes to rent or buy then this, they argue, will keep Britain building during the construction downturn.

John Healey, former shadow secretary of state for housing and planning and a keynote speaker at the 2016 CIPFA Annual Conference in Manchester, stated that “…although an immediate response from the government is imperative, we must now be much bolder for the longer term too.  Housing has become a totem for government policy failure – it is hard to think of another area of public policy that has failed so badly in recent decades and if mainstream politics can’t deal with bread-and-butter concerns like the cost and condition of our homes then people will look elsewhere for answers…”

If the housing sector is to build anywhere near the million homes target promised by David Cameron prior to the referendum then we need action on land, planning and incentives to build. 

The government has, in the last six years constricted the capacity of councils to build. So by giving the freedoms and resources they need to scale up the number of homes they build must now be a priority. If we are to face the problems of post-Brexit Britain and deal with the housing pressures people face, a change of direction that is fast and fundamental is needed.

Need advice or wish to talk to us?
If you would like to discuss any housing matters or concerns over the referendum please do not hesitate to contact us.
Legal Executive - Housing and Regeneration team
Tel: 0151 600 3180

North West Housing Conference - Friday 4 November 2016

Firmly established as one of the leading housing events in the region, the North West Housing Conference takes place on Friday 4 November. A must attend event for housing professionals, the conference will review the latest developments in policy and strategy and explore the economic realities facing the sector and will include a panel session called “Homes for All: Ownership v Rent” where delegates will have the opportunity to put questions to a panel of specialists from the social housing sector.

Book your place - You can book your place and view all the workshops and full conference programme by visiting


Brexit: The effect for Public Procurement Law - an overview for Registered Providers

Wednesday 12th October 2016

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Housing and Regeneration News - October 2016

The UK government has a mandate to exit the European Union (EU). While political commentators are unclear as to when the government will trigger the Article 50 exit process, consideration has been given to the impact on domestic law of the UK’s decision to leave the European Union. The percentage of laws that arise directly from, or are influenced in some way by, Brussels is still debated. It is however common knowledge that the current public procurement law originated from the EU, and that it was a European case that extended the application of the law to Registered Providers of Social Housing (RPs). 

Since the referendum, some of the issues surrounding public procurement law post-Brexit have become clearer, while others remain currently unfathomable. 

Amongst RPs, there is significant dislike of the myriad of red tape and procedural rules they must adhere to within the Public Contracts Regulations 2015, especially with regard to development agreements. Unfortunately however one thing that is certain is that Brexit is unlikely to remove procurement law from our shores.

When the UK entered the European Economic Community (as the EU was then known), public law in the UK was in its infancy and challenges to public procurements rarely happened. Increased outsourcing by public bodies and a better remedies regime has led a reasonable expectation by the private sector that they will be treated fairly and transparently by public bodies, and will have recourse to legal rights and remedies if this is not the case. This genie cannot be put back in the bottle. There remains a demand to ensure that public bodies treat bidders fairly and transparently and provide a recourse of legal rights and remedies if those standards are not met. At the highest political levels, this view prevails. While the government could repeal or amend procurement law post-Brexit, it should be noted that in England, Wales and Scotland, the legislation enacted by national and devolved governments is more stringent and more extensive than is required under the EU directives. For the foreseeable future, the UK government is likely to remain in favour of public procurement law and will be unlikely to repeal it or remove from its scope any individual sector such as RPs.

Even if the government was minded to repeal the current law, it is unlikely it would be allowed to do so and still trade with the EU. For example, Norway, by being a member of the European Economic Area, is bound by the EU Public Procurement directives. In addition the government procurement agreement (GPA), set up by the World Trade Organisation (WTO), is based on identical principles to EU public procurement law, i.e. non-discrimination, transparency and procedural fairness. Even the two proposed agreements between the EU and Canada and the USA have similar chapters on public procurement.

Unless the UK fails to reach any agreement with the EU and decides not to rely on the WTO and its GPA, it is likely the UK will continue to adopt national procurement legislation which is very similar in substance to what we currently have, regardless of whether this is in the current legislation or replacement legislation. This much is clear.

What has become unclear, however, is how case law will be applied.

Currently, the UK remains a member of the EU and shall do so until the Article 50 process has completed. During this time the UK courts and public procurement practitioners must abide by the decisions reached in the European Court of Justice (ECJ) in relation to the application of procurement law.

It is unclear to what extent, if any, the UK courts or public procurement law practitioners would be required to abide by decisions reached by the ECJ or the EU first tier courts once the UK is outside of the EU. While the decisions of the ECJ can be very helpful in interpreting the directives and therefore our own domestic legislation on public procurement law, the purpose of Brexit was to ‘take back control’ and ensure the supremacy UK Parliament and UK courts. While this would be helpful to some extent for legal practitioners, as we would not have to read as many case reports, the volume of EU-wide public procurement law cases does help to interpret and to clarify grey areas in the law. It would be dangerous though to rely on the judgement of the ECJ if such cases had no relevance in UK law. That said, given the above regarding the use of public procurement law under the Norwegian model, we may not only be required to adhere to these cases if we want to access the single market but it would make sense generally for UK public procurement law not to drift too far from EU public procurement law, given that they are established from the same principles.

Therefore, it is increasingly clear that public procurement law, will remain largely unchanged post-Brexit and will likely continue to apply to RP’s who must comply with the law when purchasing goods, services and works. However, a number of questions remain unanswered for example how it will develop in a post-EU future. 

Need advice or wish to talk to us?
If you would like to discuss any public procurement matters around Brexit, or public procurement law in general, please do not hesitate to contact Michael.
Associate, Commercial team
Tel: 0151 600 3085

Michael Winder is a  member of the Procurement Lawyers' Association

North West Housing Conference - Friday 4 November 2016

Firmly established as one of the leading housing events in the region, the North West Housing Conference takes place on Friday 4 November. A must attend event for housing professionals, the conference will review the latest developments in policy and strategy and explore the economic realities facing the sector and will include a panel session called “Homes for All: Ownership v Rent” where delegates will have the opportunity to put questions to a panel of specialists from the social housing sector.

Book your place - You can book your place and view all the workshops and full conference programme by visiting


Disrepair update: Pathways and notices outside flats

Wednesday 12th October 2016

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Housing and Regeneration News - October 2016

The Supreme Court has recently given judgment in the case of Edwards v Kumarasamy [2016] looking at the scope of a landlord’s repairing obligations under Section 11 of the Landlord and Tenant Act 1985 (“Section 11”) in the context of a defect to a pathway outside a block of flats.
Josephine Morton, Senior Associate,  looks at the case which is a good outcome for landlords, but offers a note of caution.
The facts
  • An assured shorthold tenant of a flat tripped over a raised edge of paving slab when taking his rubbish from the main door of a block of flats to the bin store and suffered some personal injury.
  • The private landlord was a buy-to-let investor and held a long lease of the flat, together with rights of access. He did not own the block.  He did not have a lease of the external area where the tenant fell.
  • The landlord had not received notice of the disrepair to the paving.  
The issues
There were three issues that the Supreme Court considered in this case:
  • Was the path part of the exterior of the property?
  • Did the landlord have any interest over the path which he did not own himself (as it belonged to the head landlord)?
  • Did the landlord need to have had notice of the disrepair to be liable? 
The decision
The Supreme Court decided:
  1. A path which was far removed from the property did not form part of the structure or exterior of the property for the purposes of Section 11. A plain English interpretation of the word exterior ought to be adopted and it wasn’t possible as a matter of ordinary language to treat a path leading from a car park and bin store to the front door of the block as “part of the exterior of the front hall”. 
  2. The landlord had a leasehold easement over the common parts of the block, including the path.
  3. The landlord must be on notice of disrepair to common parts before there can be liability. 
The Supreme Court overturned the Court of Appeal’s earlier decision and held that the landlord was not liable for damages for the reasons summarised at (1) and (3) above.
This is a significant decision and a good one for landlords. 
Other potential obligations may apply...
You should however be aware that even if a landlord is not caught under Section 11, there may still be obligations under S.4 Defective Premises Act 1972 where the same notice requirements do not apply.
Need advice or wish to talk to us?
If you would like to discuss any disrepair matters or concerns, please do not hesitate to contact: 
Senior Associate, Housing and Regeneration team
Tel: 0151 600 3094

North West Housing Conference - Friday 4 November 2016

Firmly established as one of the leading housing events in the region, the North West Housing Conference takes place on Friday 4 November. A must attend event for housing professionals, the conference will review the latest developments in policy and strategy and explore the economic realities facing the sector and will include a panel session called “Homes for All: Ownership v Rent” where delegates will have the opportunity to put questions to a panel of specialists from the social housing sector.

Book your place - You can book your place and view all the workshops and full conference programme by visiting