Insights Commercial Property Law – Key Considerations (May 2023)


Our May 2023 summary of the latest developments in Property law and practice is as follows:

A new schedule 7A has been inserted to the Town and Country Planning Act 1990. When implemented, this will make Biodiversity Net Gain (BNG) a condition of planning permissions granted in England. The Department for Environment, Food & Rural Affairs has published a consultation response to this which confirms that the Government will be providing funding for Local Planning Authorities to prepare for mandatory net gain requirements to come into force in November 2023. Thereafter, all future development projects in England (subject to some exceptions) will be required to deliver a minimum 10% BNG, to be maintained for a period of at least 30 years. Although November 2023 is the projected commencement date, the Government proposes to extend the transition for small sites until April 2024.

The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023 (SI 2023/362) brings new parts of Section 78 of the Building Safety Act 2022, (dealing with the registration of higher-risk buildings) into force on 6 April 2023.  Under section 78 of the Building Safety Act 2022, higher risk buildings must be registered with the Building Safety Regulator (see Section 2 of BSA 2023). ‘Higher-risk buildings’ means a building in England that is at least 18 metres in height or has at least 7 storeys and contains at least 2 residential units. The principal accountable person is responsible for registering the building and, in practice, this will be the building owner or management company.

The Law Commission has announced that it will review Part 2 of the Landlord and Tenant Act 1954 (or, as its announcement calls it, the “Decades-old laws affecting business tenants”) by way of a consultation paper to be published before the end of this year. The hope is to modernise commercial leasehold legislation, with an emphasis on creating a legal framework that is widely used rather than consistently ‘opted out’ of, without limiting the rights of parties to reach their own agreements. The hope is to create legislation that is clear, easy to use, and beneficial to landlords and tenants.

Under regulation 27 of The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (SI 2015/962), a landlord of a sub-standard non-domestic private rented property must not let the property unless exemptions under the regulations apply. As from 1 April 2023, letting a property includes continuing to let the property. Where a lease of sub-standard (F or G rated) premises continues beyond 31 March 2023, the landlord runs the risk of incurring a penalty under the regulations by continuing to let unless an exemption under the regulations applies and is registered.