Planning and Environment Law Briefing - April 2019

EMA left frustrated, will have to continue operating from UK

The European Medicines Agency has lost a high-profile court battle to cancel its £500m long-term office lease in Canary Wharf, London. The EMA had sought to relocate to Amsterdam, citing uncertainty caused by Brexit.

The contractual doctrine of frustration holds that, where, due to circumstances outside of the control of either party, the obligations contained in the contract have become impossible to perform.

A classic example of frustration can be found in Taylor v Caldwell (1863), where a music hall was hired out for a concert but it burned down before the concert could go ahead. Accordingly, the contract was deemed frustrated.

It is worth noting that in more recent cases, the courts have repeatedly held that the doctrine is not to be lightly applied and that the doctrine cannot be invoked where the obligations have simply been rendered 'more difficult' as opposed to impossible. Also, frustration may not be invoked where the change in circumstances is due to one party's conduct.

In the present case, Mr Justice Smith was not satisfied that the EMA remains obliged to perform its obligations under the lease, and that the UK's transition to a non-EU member state did not, of itself, constitute a 'frustrating event'.

Central to Mr Justice Smith's decision was the fact that the legal effects of Brexit on the EMA could have been ameliorated by the EU, but they were not and as such, the frustration of the lease, insofar as it exists, can be attributed to this failure to act. Therefore, it was self-induced.

The judge went on to hold that it would be  a remarkable event to allow a body who had just signed up to a lease under UK law to now avoid that lease because of political circumstances, simply because it is an emanation of the EU.

This decision will now prevent other bodies domiciled in the UK from avoiding their leases on similar grounds and relocating to other EU member states. The judge did however comment that the EMA could assign the lease elsewhere subject to the landlord's consent.

For more on the issue of frustration of contracts, see McDermott and McDermott, Contract Law.



Latest on Dublin's hoped for traffic-free plaza at College Green

In a study carried out by Amarách Research for RTÉ's Claire Byrne Live show, 60% of respondents surveyed said the area should be pedestrianised and turned into a car-free public plaza.

In October, An Bord Pleanála rejected the council's plan for a continental-style plaza at College Green, citing concerns about the knock-on effect on traffic in the area - as no traffic would be permitted to enter Dame Street.

However, it is understood that Dublin City Council are determined to see the plan through in the near future, with further initiatives put in place to keep traffic moving from North to South.

According to this report in the Irish Independent, DCC will lodge a new application for the plan in 2019, with a projected cost of around 10m EUR. The council have decided not to pursue judicial review proceedings on the prior rejection, as this would likely be a time-consuming and costly procedure.

Developments on this application will be published in future P&E Briefings.



Kildare farmer lodges objection against further Leixlip development

A farmer from Co Kildare has lodged an objection against the planning $4bn redevelopment of Intel's facility at Leixlip. This is the seventh objection in as many years that has been lodged by the farmer in question, Mr T. Reid.

In what would be the largest single piece of private investment in the history of the State, the micro-chip manufacturers have sought 10-year planning permission to extend their campus. Intel estimate that the project will employ well in excess of 5,000 construction workers.

According to this report in the Irish Times, Mr Reid has plenty of experience with planning procedure, having emerged victorious in a famous battle with the IDA which led to the High Court agreeing with his contention that the state body had acted ultra vires when acquiring his 72 acre Leixlip farm by Compulsory Purchase Order.



Note: This is not intended to be taken as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.


BPro Tax

Scottish Law & Tax Online

Online access to Bloomsbury Professional Scottish Law & Tax books, looseleafs and journals. Free Trial

Need Help?

Bloomsburyprofessionallaw If you need any help with finding publications or just ask a question. Talk to an Advisor: 01444 416119
or send us a message