Utilities & Infrastructure

(Applicable to the UK)

Summary

The National Infrastructure Security (NIS) 2 Directive aims to enhance the security of network and information systems within the EU by requiring operators of critical infrastructure and essential services to implement appropriate security measures and report any incidents to the relevant authorities.

Comment

Building on the original Network and Information Security Directive, regulators are mandating that entities in highly critical sectors (including water suppliers) regularly engage with and report to authorities regarding cybersecurity.

The requirements will revolve around: cybersecurity incident response and crisis management processes, incident reporting, vulnerability management and disclosure, testing of cybersecurity controls, and data protection.

This legislation may be relevant to an Energy, Waste or Utilities company where it has non-UK suppliers in their IT supply chain.

EU Member States have until 17-Oct-24 to transpose the Directive into national law.

To find out more, please see our article: The EU’s NIS2 Directive: key points you need to know | Foot Anstey

(Applicable UK-Wide)

Summary

The Digital Markets, Competition and Consumers Act 2024 (“DMCCA”) received Royal Assent in May this year and the new regimes will come into force in Autumn 2024.

Comment

The DMCCA establishes a new pro-competition regime for digital markets by giving the CMA the power to designate undertakings as having strategic market status in respect of a digital activity. The CMA will be able to impose conduct requirements on designated undertakings and, following investigation, make pro-competition interventions. Further, the DMCCA amends aspects of the mergers, markets and antitrust regimes whilst also providing for co-operation with overseas regulators, disclosing information overseas and a duty of expedition.

To find out more, please see our article: UK Government Draft Bill Proposes Significant Reforms for Consumer Protection and the Digital Sector | Foot Anstey

Summary

This new Bill, which is intended to reform the cyber-security regulatory regime, was set out by the new government, and introduced in the King’s Speech of 17 July 2024.

Comment

The Bill proposes to reform the existing regulatory regime by extending its scope to protect more digital services and supply chains, enhancing the power of the regulator, and mandating increased incident reporting. As is the case with product safety, cyber security and cyber resilience legislation are legacies of EU law. While the EU has legislated to update its regimes, the UK has not yet done so. The Bill is yet to be published.

(Applicable to the UK)

Summary

In 2023 the Law Commission conducted a review of Part II of the Landlord and Tenant Act 1954 (the Act), saying it was inflexible, bureaucratic and out of date, causing extra delay for both landlords and tenants.

This is the part of the Act which presently applies to all business leases except for those of 6 months of less and those which have been expressly contracted out. It provides security of tenure to tenants where it applies. Security of tenure means that when the fixed term of a lease ends the tenant has a statutory right to remain in occupation and apply to the court for the grant of a new lease.

The landlord has limited specified grounds to object to the tenant’s renewal in order to obtain possession of the property.

The UK Government appears keen that after any reforms the legislation is more widely used and that fewer parties contract out of it, and it is fit for purpose in today’s commercial market.

Comment

The Act has been criticised for some time.

Proposed reforms are likely to consider:
(1) whether commercial tenants require security of tenure protection in the current day;
(2) whether the current process of contracting out can be further streamlined; and
(3) whether grounds of opposition should be extended or limited amongst other matters.

Reforms appear to be on the horizon and these will affect any parties who are currently a party to, or enter into business leases as part of their business as landlord or tenant.

(Applicable to England and Wales)

Summary

In August 2023 a class action lawsuit was brought under the Consumer Rights Act 2015 against Severn Trent for its alleged breach of environmental obligations. The claim is brought in the Competition Appeals Tribunal (CAT) and the claim value is £330m. The claimant, Professor Carolyn Roberts (represented by Leigh Day), accuses Severn Trent of under-reporting sewage spills and overcharging customers.

Specifically, the accusation is that the company have misled regulators about the number of sewage discharges, this should have led to more penalties paid by the company and reduced customer bills (because the company had not meet their environmental targets), therefore, it is claimed that Severn Trent unfairly overcharged customers by under-reporting sewage spills.

Although the claim is currently only brought against Severn Trent, the claimant has indicated an intention to bring further claims against several other water companies.

Comment

This claim is likely to be of relevance to utilities companies and their competitors. It remains to be seen whether the claimant will widen the scope of their claim to include other companies, however, the fact of this claim alone will be of significance to our utilities clients and competitors.

(Applicable to England and Wales)

Summary

This High Court ruling dated 26 March 2024 impacts the validity of ‘secret-commission’ claims against energy brokers

The High Court has held, among other things, that the scope of a broker’s fiduciary duty does not extend to an obligation to disclose the amount of commission in a “half secret” commission claim. However, the judge accepted that different facts may produce different results, for example where the claimant was unsophisticated or vulnerable or it could not have ascertained the amount upon enquiry.

Comment

In this instance, there was equality of bargaining power, the claimant had the opportunity to enquire about the commission amount and there was no evidence that the rate was not a customary rate of reward in the energy market. Even if the judge was wrong, he concluded obiter that the claimant had given informed consent. In fact, adding commission to the unit price was a known industry practice which, to the extent it reflected trade usage and custom, obviated the need for informed consent. The judgment clearly impacts on the validity of future ‘secret-commission’ claims, which are often brough at volume against brokers via template claims.

(Applicable England & Wales)

Summary

On Friday 24 May 2024, judgment was handed down by Foxton J in Gordiy v Dorofejeva & another [2024] EWHC 1273 (Comm).   The underlying claim (concerning an abortive share purchase agreement) was valued at £650,000 to £900,000 and issued in the Commercial Court by a litigant in person.

Comment

The Court warned legal practitioners that claims valued under £1 million should not be commenced in the Commercial Court. The Judge commented that the commencement and/or continuation of proceedings in the correct court is equally the responsibility of all parties. Where judges discover that hearings have been listed in cases inappropriately commenced in the Commercial Court, those cases will be transferred out.

(Applicable England and Wales)

Summary

This case concerned service of a notice of claim to acquire the right to management under the Commonhold and Leasehold Reform Act 2002 (the Act) by Tudor Studios RTM Company Limited (Tudor). The Act required Tudor to serve a notice of claim on each person who was a landlord under a lease of the whole or part of the premises.

Tudor did not serve a notice on A1 Properties (Sunderland) Limited (A1) who held 4 leases of the common parts. The reason Tudor did not do so was that A1 did not have any management responsibilities in relation to those leases as it had underlet all the areas to a management company who was responsible for the whole estate.

The management company served a counter-notice on Tudor objecting to it acquiring a right to manage on the basis it had not served the claim notice on A1.

The Supreme Court ultimately held that failure to serve a claim notice on one landlord did not automatically prevent the transfer of the right to manage to under the Act.

The Supreme Court decided that, as the Act didn’t set out the express consequences for non-compliance, the Court needed to consider what consequence of non-compliance fit the Act as a whole.

Comment

The Court held the failure to give notice of the claim to the landlord in this case made the transfer of the right to manage voidable but not automatically void from the outset, and noted that, as in this case, A1 had been joined to proceedings at an early stage, A1 had already had an opportunity to object to the acquisition of the right to manage.

The decision has wider importance in that it has set out the approach courts should use in deciding on the consequences of parties failing to comply with a statutory framework where Parliament hasn’t expressly set these out.

Issues around procedural compliance are quite common in property matters. Whilst this case does clarify the test to be applied in certain cases of non-compliance; it is a further reminder to Stakeholders of the need to comply with all statutory requirements when serving notices or taking other action under property legislation. The consequences of not getting this right could be expensive and time-consuming.

(Applicable to England and Wales)

Summary

Ministerial review of call for evidence response and setting out next steps, consider technical exemptions to the mandatory notification requirement (approx. Autumn 2024) and improve the operation of the NSI system.

Summary

From 1 September 2024 VAT needs to be accounted for on certain trades of voluntary carbon credits at the standard rate. HMRC will allow the VAT relief granted under the Terminal Markets Order to apply to contracts in taxable voluntary carbon credits traded on terminal markets, within the terms of the relief.

Comment

The following activities are still outside the scope of VAT: the first issue of a voluntary carbon credit by a public authority; the holding of voluntary carbon credits as an investment, where there is no economic activity; donations made to voluntary carbon credit projects; and sales of voluntary carbon credits from self-assessed projects with no independent or third-party verification.

(Applicable UK-Wide)

Summary

In May 2024, the Government published an implementation update on the UK’s Sustainability Disclosure Requirements: Sustainability Disclosure Requirements: Implementation Update 2024 – GOV.UK (www.gov.uk)

Comment

The implementation update was published under the 2022 to 2024 Conservative Government. It was expected that a timeline and details of updates and a consultation process would be published in late 2024, however it is yet to be seen whether the new Labour Government will continue with this approach.

(Applicable UK-Wide)

Summary

The International Sustainability Standards Board (ISSB) delivers further harmonisation of the sustainability disclosure landscape as it embarks on new work plan announced on 24 June 2024. The International Financial Reporting Standards (IFRS) Foundation will assume responsibility for the disclosure-specific materials developed by the Transition Plan Taskforce (TPT).

(Applicable UK-Wide)

Summary

On 6 June 2024, the Institute of Directors launched a Code of Conduct for directors with 6 ‘Principles of Director Conduct’, a proposed voluntary Code of Conduct for directors of all types of corporate entity.

(Applicable UK-Wide)

Summary

The Financial Conduct Authority (FCA) introduced a Consumer Duty requiring companies to “act to deliver good outcomes for retail customers” – rules came into force in relation to products or services from 31 July 2024

Comment

The 31 July 2024 is the first deadline for companies to prepare and approve a first Report, with the duty applying from 31 July 2023 and ongoing obligations from this point.

(Applicable to England and Wales)

Summary

In 2021, the Government proposed to raise the minimum energy efficiency standard to C by 2027 and B by 2030. On 23 September 2023, Rishi Sunak announced that ““…new policies forcing landlords to upgrade the energy efficiency of their properties will be scrapped…”. The Government has since abandoned the requirement for an increasing minimum energy efficiency standard for domestic properties but the position for commercial property is less clear.

Comment

Whilst the Government is yet to confirm whether these plans will be implemented, it is important our clients prepare for these changes. Landlords will want to be aware whether their property is exempt under the proposed changes and may consider undertaking works to their property to improve their EPC rating in the long term.

(Applicable to England and Wales)

Summary

The Planning Inspectorate (“PINS”)  has published new guidance on Nationally Significant Infrastructure Projects (“NSIPs”) and Development Consent Orders (“DCOs”) and procedure under the Planning Act 2008 (the 2008 Act”).  The new advice pages provide advice on NSIPs / DCOs the following topics:

For applicants:

1. advice on making changes to a NSIP/DCO application once submitted to PINS;
2. advice on compiling a consultation report;
3. advice on preparing and submitting application documents.

For Local Authorities:

1. advice on their role in the NSIP process;
2. advice on the Environmental Impact Assessment process;
3. advice on the NSIP process in Wales;
4. advice on taking part in the NSIP process at each stage.

For people and organisations involved in the NSIP process:

1. advice on how to make representations or comments on an NSIP;
2. advice on the NSIP process more generally.

Comment

Whilst this is only guidance and is non-statutory, the guidance is to be read alongside the Planning Act 2008 and is drawn from good practice. The government notes that applicants and others should follow recommendations when engaging in the NSIP process. For further advice on NSIPs or DCOs, please contact Foot Anstey’s planning team.

(Applicable UK-Wide)

Summary

The government have committed to bring forward legislation to modernise the investment powers of the Crown Estate.

Comment

The Crown Estate Bill should allow significant investment in public infrastructure such as offshore wind farms by the Crown Estate. The amendments to the Crown Estate Act 1961 will grant power to the Crown Estate to borrow from the Exchequer which will free up the Crown Estate’s large cash reserves for investments in future projects. The Bill is currently at committee stage in the House of Lords.

(Applicable UK-Wide)

Summary

In the King’s Speech published on 17 July 2024, the Government committed to publishing a draft Leasehold and Commonhold Reform Bill. The bill would:

– enact remaining Law Commission recommendations to strengthen leaseholders’ rights to extend their lease, buy their freehold, and take over management of their building.

– modernise the framework around Commonhold in keeping with recommendations put forward by the Law Commission in 2020 and abolish the sale of new leasehold flats so Commonhold becomes the default tenure.

– regulate ground rents for existing leaseholders.

– strengthen the rights of freehold homeowners on private or mixed-tenure residential estates.

– end the ‘injustice’ of forfeiture so leaseholders are protected against losing savings they have in their homes for potentially small unpaid debts.

Comment

The Government intends to publish the draft legislation in the 2024-25 parliamentary session to allow it to be subject to broad consultation and additional parliamentary scrutiny.

The proposed Leasehold and Commonhold Reform Bill is intended to make very significant changes to the legislative framework governing property in England and Wales.

Stakeholders are encouraged to follow the developments closely and engagement with consultations as and when these arise.

(Applicable England & Wales)

Summary

The Leasehold and Freehold Reform Act 2024 (LFRA 2024), came into effect on 24 May 2024. The LFRA 2024 has the principal aim of improving the rights of residential long leaseholders of houses and flats in England and Wales. Some of the amendments include: 1. Banning the grant of long residential leases of houses unless they are within a permitted exception, 2. Extending the right to manage, 3. Requiring landlords and estate management companies who manage their property or estate to sign up to a mandatory redress scheme.

Comment

Clients in the private rental sector should consider the changes to the leasehold regime when looking at new development projects.

Clients who work in the residential housing sector should consider the potential impacts of the Bill when looking at their next development projects since leaseholder rights have grown stronger.

(Applicable England & Wales)

Summary

The RRB 2024 builds on the Renters (Reform) Bill 2023. Key proposals in the RRB 2024 include the abolition of fixed-term assured tenancies and assured shorthold tenancies (ASTs) and therefore the abolition of “no-fault” evictions under section 21 of the Housing Act 1988. The RRB 2024 also amends the grounds for possession, to provide tenants with more security (a 12 month protected period, where the tenant cannot be evicted in the first 12 months for the landlord to either move in or sell the property). However, the provision of ‘reasonableness’ remains to ensure that in certain circumstances the landlord can remove the tenant. ‘Awwabs Law’ has also been extended to the private sector, to ensure that landlords are required to investigate and fix reported health hazards. Bidding wars have also been banned in the RRB, as well as blanket bans on tenants with children or those on benefits.

Comment

This new Bill has already come into force, and landlords and tenants alike should be aware of the changes.

It is important for developers who are wishing to rent out properties to be aware on these tighter laws and restrictions.

(Applicable England & Wales)

Summary

Phase 2 of the Grenfell Public Inquiry report was released which looked at the wider circumstances that contributed to the disaster on 14 June 2017. The report consists of 19 pages of recommendations, notably covering central and local government, the fire service and the construction industry.

Comment

No specific dates, but clients should be aware of how this can affect building safety in England and Wales.

Developer and construction clients should be aware of the report’s recommendations as they will shape government policy regarding building safety in England and Wales.

(Applicable England & Wales)

Summary

This note on HMRC’s SDLT manual adds to the two previous notes published in November 2022 and August 2023. This new guidance largely reflects the previous notes, however amendments include: rule changes to bare trusts, clarification or rules relating to major interests in dwellings and specifications over first time buyer relief.

Comment

On 30 July 2024 this new guidance was posted, so clients should stay up to date and informed. This is useful for first time buyers.

(Applicable to England and Wales)

Summary

The Law Commission is reviewing Part 2 of the Landlord and Tenant Act 1954 (‘the Act’) with a view to ensuring it is suitable in for the modern commercial leasehold market. The purpose of the Act was to address the disparity in bargaining power between landlords and tenants arising from the scarcity of commercial property following the Second World War. The legislation is nearly 70 years old and whilst it has been updated in the past to provide some flexibility to Landlords and Tenants it has not been significantly updated for nearly 20 years. As a result, it is not up to date with the current commercial leasehold market and the emphasis on environmental sustainability.

Comment

The report is currently held up in the pre-consultation step, but we will monitor this closely and provide updates as and when required.

There are concerns surrounding the potential reform of the Act but on the whole it is agreed that it requires modernisation. One of the most likely targets of modification by the Law Commission will be the procedure for contracting out of the security of tenure provisions under the Act which can be a cumbersome process and does not take into account advancements in technology. Changes to Part 2 of the Landlord and Tenant Act 1954 could reshape future business tenancies as current standard practice is for landlords to exclude the right for tenants to automatically renew their lease upon lapse of their lease term.

Applicable England & Wales

Summary

The Levelling Up and Regeneration Act 2023 (“LURA 2023”) included requirements for disclosure of contractual rights over land in England and Wales.  Secondary legislation will determine how the information will be requested but the requirements for disclosure will include key information such as the type of agreement, the parties involved, the date of the agreement and details of the solicitors involved in the transaction. This will impact certain land agreements including option agreements, conditional contracts and promotion agreements.  The Government consulted on draft regulations seeking views on the implications of collecting and publishing information on contractual control agreements. The consultation closed in March 2024.

Comment

Given the change in the Government, it is not yet clear whether these proposals will still be implemented. Potential disclosure requirements in relation to contractual control agreements will mean that parties to such documents will have to supply more potentially sensitive commercial information. This will also cause further administrative steps for developers and their advisers to correctly file information in line with regulations.  If information is not provided or false information is given knowingly or recklessly, this could constitute a criminal offence under LURA 2023 which carries a maximum of 2 years imprisonment and an unlimited fine.

(Applicable to England and Wales)

Summary

The Law Commission is reviewing Part 2 of the Landlord and Tenant Act 1954 (‘the Act’) with a view to ensuring it is suitable in for the modern commercial leasehold market. The purpose of the Act was to address the disparity in bargaining power between landlords and tenants arising from the scarcity of commercial property following the Second World War. The legislation is nearly 70 years old and whilst it has been updated in the past to provide some flexibility to Landlords and Tenants it has not been significantly updated for nearly 20 years. As a result, it is not up to date with the current commercial leasehold market and the emphasis on environmental sustainability.

Comment

There are concerns surrounding the potential reform of the Act but on the whole it is agreed that it requires modernisation. One of the most likely targets of modification by the Law Commission will be the procedure for contracting out of the security of tenure provisions under the Act which can be a cumbersome process and does not take into account advancements in technology. Changes to Part 2 of the Landlord and Tenant Act 1954 could reshape future business tenancies as current standard practice is for landlords to exclude the right for tenants to automatically renew their lease upon lapse of their lease term.

(Applicable UK-Wide)

Summary

The Digital Information and Smart Data Bill, which is currently at committee stage in the House of Lords, is intended to permit the establishment of a National Underground Asset Register, which will allow planners and excavators to access data regarding the installation and maintenance of underground pipes and cabling.

Comment

The Digital Information and Smart Data Bill will look to implement certain provisions of the previous Government’s failed Data Protection and Digital Information Bill. The form of the smart data proposals is yet to be established however the creation of a digital map for maintenance of underground networks of pipes and cables could prove a useful tool for the construction and utility sectors.

(Applicable UK-Wide)

Summary

This Bill, which was announced in the King’s speech on 17 July 2024, is intended to streamline critical infrastructure project delivery by simplifying the consenting process for large infrastructure projects. It is intended to introduce new National Policy Statements with a review process every five years. The Bill will also aim to reform the compulsory purchase compensation rules.

(Applicable England & Wales)

Summary

Coming into force on 09 December 2024.

Under the 2024 Order:

Fees for HM Land Registry information services will increase by £4 per application (Parts 2 and 3 of Schedule 3).

The definition of “electronic means” (in Article 1(1)) has been updated to exclude email, which will result in higher fees for applications submitted via email. This is subject to an exception for applications made under rule 140 of the Land Registration Rules 2003, which continue to qualify for the lower fee.

Comment

It is important for clients to be aware of changes in prices as a result of these new rules. General paper based applications have increased to £6 for searches and £5 for official copies, to incentivise and reduce reliance on paper being used and sent.

(Applicable to England)

Summary

On 3^rd October 2024, the Ministry of Housing, Communities and Local Government published new guidance setting out in detail the compulsory purchase process and compensation rules in England. The guidance explains the process and procedural requirements as well as providing advice on the exercise of compulsory purchase powers. The guidance was published together with a model compensation claim form which sets out the information to be included when making a claim for compensation and guidance notes on filling out the form.

Comment

Related guidance has also been published on the following topics:

• Crichel Down Rules;
• Purchase notices;
• Compulsory purchase: Rates of interest;
• Compulsory purchase compensation: Power to remove hope value.

(Applicable to England)

Summary

The government have consulted on proposed reforms to the NPPF in a consultation running from 04 August 2024 to 24 September 2024. Changes to the NPPF are expected to be introduced in early 2025. The proposed changes to the NPPF are part of Labour’s strategy to unlock the planning system for housebuilders, renewables, and infrastructure to grow the economy.

(Applicable to England and Wales)

Davies (Respondent) v Bridgend County Borough Council (Appellant) [2024] UKSC 15

Question considered in the Supreme Court:

Were the lower courts correct to decide that loss suffered by the Respondent, in the form of diminution in value of the Respondent’s property as a result of the encroachment of Japanese knotweed from the Appellant’s land, was caused by the Appellant’s breach of duty in failing to treat the knotweed, in circumstances where the encroachment first arose before the Appellant’s breach?

Comment

Judgment handed down 8 May 2024. Supreme Court overturned decision of Court of Appeal. Held that no damages should be awarded to the claimant as here was there was no evidence the breach between 2013 and 2018 increased the diminution in value of the Respondent’s property.

Find out more

(Applicable to the UK)

Summary

The Supreme Court is passing judgment on an appeal concerning a long-running dispute between Manchester Ship Canal Company and United Utilities (UU) regarding the discharge of untreated foul water from sewers operated by UU into Manchester Ship Canal. UU argues that any private law claim of nuisance and/or trespass are impliedly offset by the Water Industry Act 1991. The Act provides an enforcement mechanism for breaches of duty by sewerage undertakers; the argument was successful in the first instance and now we await judgment concerning MSCC’s appeal.

Comment

Example of private nuisance/ trespassing action against a Utility company.

(Applicable to England and Wales)

Summary

In this Judgment, handed down on 25 April 2024, the taxpayers owned a property portfolio and wanted to acquire another property using acquisition funding. The taxpayers and finance provider (S) entered into an ‘option agreement’ which granted S an option to buy three of the portfolio properties in return for the funding (which was a lot less than the value of the properties). S could exercise its right to buy at the end of a 12-month period, provided that the taxpayers had not repaid the deposit plus interest which would determine the agreement.

HMRC argued this agreement was a disposal subject to capital gains tax but the taxpayers argued it was a loan with the grant of security. Here, as the taxpayers had control over the event that the right to exercise depended on, the option would have only been granted if and when the taxpayers ceased to be able to determine the agreement by repaying the funding plus interest. If the grantor of the option has sufficient control to prevent an agreement being an irrevocable disposition (as opposed to one that is contingent on events outside its control) there is a risk that the agreement will not be considered an option for tax purposes.

Comment

When drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tWhen drafting an option agreement, it is important to check the events that will trigger the right to be exercised. If this is not drafted carefully, the parties may incur unforeseen tax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.ax liabilities. Clients considering entering into an option agreement should seek legal advice to ensure their intentions are properly represented in the agreement.

(Applicable to England and Wales)

Summary

The High Court recently ordered compensation where there was misrepresentation in opposed lease renewal proceedings under the Landlord and Tenant Act 1954 (the Act).

The Act gives business who do not contract out of it, security of tenure which gives them a right to lease renewal at the end of their tenancy and the ability to remain in occupation at the end of a lease on the same terms as their old lease (unless a landlord can establish one of the grounds of opposition set out in section 30(1) of the Act).

The Defendant (Shirayama Shokusan) (SS) owns premises opposite the Houses of Parliament. Until March 2019, McDonalds (the Claimant), ran a restaurant from part of the premises. It was quite a high profile site. McDonalds sought a new lease of the property at the end of its tenancy. SS opposed this using section 30(1)(g), which allows for termination of a protected tenancy where the landlord intends to occupy it for its own business or residential purposes.

In the contested renewal proceedings, extensive evidence was provided of SS’ intention to operate a restaurant from the premises serving Japanese food by November 2019. However, this did not happen. SS briefly opened restaurants in parts of the premises in 2020 and 2021, though not the restaurant it had provided extensive evidence in respect of. McDonalds then sued SS for deceit and damages under section 37A of the Act (compensation obtained by misrepresentation).

SS accepted the restaurants it had opened differed from what it had told the court its intention was previously, but said it had genuinely changed its mind and that the delay was mostly due to the pandemic.

The Court dismissed the deceit claim, but did find SS liable to pay compensation to McDonalds under the Act.

Comment

Decisions which deal with the payment of compensation under section 37A are unusual.

The decision emphasises that, where landlords contest a tenant’s application for a new lease under section 30(1)(g) (i.e. the intention to use the premises for the purposes of its own business) it must have a fixed and settled intention to do so at the date of contested lease renewal proceedings.

In this case the court found SS had deliberately misrepresented to the court in the contested renewal proceedings its intention open a Japanese restaurant, and this had induced the court to refuse McDonalds the grant of a new lease. Compensation was therefore payable.

Landlords should take care to advance at contested renewal proceedings, only intentions which they genuinely intend to proceed with.

(Applicable to England and Wales)

Summary

A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.

Comment

The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.

(Applicable England & Wales)

Summary

The Upper Tribunal considered the rent and break right in a lease renewal under Part 5 of the 2017 Electronic Communications Code (2017 Code). It granted the landlord a right to break on the 5th anniversary of the term commencement and each anniversary after that, if the landlord intended to develop all or part of the site for any purpose and could show that it could not reasonably redevelop while the lease continued.  The policy of the Code is not to prevent redevelopment as it would be unfair to the landowner.

Comment

This case is relevant to clients looking to negotiate a break clause into their lease renewal, particularly when the 2017 Electronic Communications Code is relevant.

(Applicable England & Wales)

Summary

Principle: Common Intention Constructive Trust can vary an Express Declaration of Trust.

In Nilsson and another v Cynberg [2024] EWHC 2164 (Ch), an appeal by the trustees in bankruptcy was dismissed,  finding that an agreement to vary an express declaration of trust (Stack v Dowden [2007] UKHL 17) could be by way of an informal common intention constructive trust. The agreement to vary did not need to comply with the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989).

Comment

No specific dates, but clients should be aware of updates to the law. This is important for those considering entering into trust arrangements.

(Applicable England & Wales)

Summary

The High Court held, in a judgment handed down on 16 July 2024, that a planning inspector’s decision was lawful to decide  to uphold the LPA’s refusal of planning permission for a development on a site where water use might be impacting the integrity of a protected area (within the Sussex North Water Supply Zone), and that this was consistent with Natural England’s guidance and the duties of the inspector under duties under the Conservation of Habitats and Species Regulations 2017 Pt 6 (1) reg.63(5) . In relation to water neutrality, the High Court decided that whilst there had been no increase in water usage to account for, and that this approach was consistent with Natural England’s guidance in this regard, the position that existing water use was “neutral” would only apply where the proposed residential occupancy had already been granted planning permission.

Comment

This case demonstrates that, in relation to water neutrality, that only development with the benefit of planning permission or which was immune from enforcement action, was exempt from the requirement to demonstrate water neutrality.

(Applicable UK-Wide)

Summary

The government have removed the de facto ban on onshore wind as part of their commitment to doubling onshore wind energy by 2030.

The new Labour government has announced an end to the de facto ban on onshore windfarms. A policy statement released on 8 July 2024 promised to end the ban by making changes to the National Planning Policy Framework (NPPF) which will put onshore wind projects on an equal footing with all other energy infrastructure proposals.

The two tests, set out in footnotes 57 and 58 to paragraph 163 of the National Planning Policy Framework (NPPF) no longer apply. As a result, onshore wind applications will be treated in the same way as other energy development proposals.

Comment

We anticipate that there will be considerable interest in this area given the development of onshore windfarms is likely to be cheaper and logistically less complex than offshore windfarms. According to research carried out by Friends of the Earth in April 2024, it was estimated that the UK could produce 13 times more renewable energy through onshore wind and solar generation by using less than 3% of its land.

The move towards incentives to develop onshore windfarms, combined with the Labour party’s wider ambition to make Britain a clean energy superpower, indicates a strong wind change in the direction of further policies in favour of renewables.

(Applicable UK-Wide)

Summary

The National Wealth Fund Bill was announced in the King’s Speech on 17 July 2024. This Bill will establish the National Wealth Fund, which will combine public and private investment funds to promote development in key sectors, such as green hydrogen, green steel, gigafactories, ports and industrial decarbonisation. Funding will be issued through the UK Infrastructure Bank, which will provide a proposed £7.3billion to catalyse private investment, and aims to generate £3 of private sector investment for every £1 of public investment.

(Applicable England and Wales)

Summary

This case followed Surrey County Council’s decision to approve the expansion of an onshore oil extraction site in 2019. Finch applied for judicial review of the decision on the basis that the Council had not considered the environmental impact of burning the oil once extracted (the “Downstream Effects”) in addition to the greenhouse gasses emitted directly from the extraction site.

The question was whether it was lawful for the Council to ignore the Downstream Effects in its environmental impact assessment carried out under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the “2017 Regulations”). In the judgment, Lord Leggatt determined that the burning of oil was a direct consequence of extraction and so causation could be established. As a result, the Downstream Effects of the project were relevant for the purpose of the 2017 Regulations and needed to be considered. Consequently, the Supreme Court found the Council’s decision was unlawful and must be made again.

Comment

Though a significant decision, this case does not mean that local authorities cannot approve oil extraction or other projects which may lead to increased greenhouse gas emissions. Instead, the judgment signifies that planning consents must take account of and consider the environmental impact of developments and ensure that Downstream Effects (or scope 3 emissions) are included as part of their assessments. The wider impact on individual local authority decisions will be seen in due course.

(Applicable UK-Wide)

Summary

The Pensions Regulator published its policy on pensions dashboards compliance and enforcement in early September. Whilst the policy is clearly aimed at trustees and managers of occupational schemes, in practice its application is further reaching.  Given the Pensions Regulator’s powers to issue contribution notices to third parties, the application of the requirements also apply to employers, as well as integrated service providers and administrators.

Comment

The Pensions Regulator has urged that action is taken now to ensure compliance with pensions dashboards duties. The Regulator has made it clear that its approach to enforcement will be proportionate but that there will be penalties for non-compliance.

We therefore expected the Pensions Regulator to be engaging with pension schemes this autumn to assess compliance and take enforcement action where appropriate.

For further information on getting dashboard ready, please see: https://www.footanstey.com/our-insights/articles-news/is-your-pension-scheme-dashboard-ready/

(Applicable to England, Wales and Scotland)

Summary

The Workers (Predictable Terms and Conditions) Act 2023 is expected to come into force in September 2024. This will provide workers and agency workers whose contracts have unpredictability in terms of the hours, working days or length of engagement (e.g., where fixed term) with a right to request a predictable working pattern. It is expected that workers will qualify for this right on reaching 26 weeks’ service (although workers will only need to show they have worked once each month in the preceding 26 weeks given the nature of the right).

Workers will be able to make two requests within any 12-month period and employers will be required to:

• Deal with such requests in a “reasonable manner”.
• Notify the worker of their decision within one month. (note this is even shorter than the timeframe for handling flexible working requests).
• Only reject the request if it considers that one or more grounds, as stated in the Act, applies. The grounds are the burden of additional costs to the employer, a detrimental effect on the employer’s ability to meet customer demand, and/or insufficiency of work during the periods the worker proposes to work.
• Where you grant the request, offer the new terms and conditions to the worker within two weeks.

Action points:
1. Consider what proportion of your workforce may lack predictability and be entitled to make this request.
2. A new policy and procedures will be needed to deal with predictable working requests.
3. Keep an eye out for Acas’ new Code of Practice on fair and transparent distribution of tips.

(Applicable to England, Wales and Scotland)

Summary

The Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force in, or around October 2024. The legislation will:

• Introduce a proactive duty on employers to take reasonable steps to prevent sexual harassment of their employees.
• Enable employment tribunals to increase awards against employers by up to 25% where employers are found to have breached the new duty.

It was initially expected that this legislation would include an explicit protection of employees against harassment by third parties in the workplace. However, following some scrutiny of the purpose and effect of the new law it was softened such that no such “third party” harassment liability is directly imposed. Furthermore, it should be noted that employees cannot make standalone claims under the new legislation. Instead, they must link any claim to an existing harassment claim.

Action points:

1. Consider our Retailers Against Harassment Certification.
2. Review your policies on harassment (generally) and sexual harassment, how active your training is and whether you have good records on how you handle concerns about sexual harassment.
3. Although the provisions on third party harassment were excluded from the bill, do also consider a policy on third party harassment that can be used as a guidance tool by managers and employees.

(Applicable England, Wales & Scotland)

Summary

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 introduces a new positive duty for employers to take proactive reasonable steps to prevent sexual harassment of their employees in the course of their employment.

The preventative duty does not create a new freestanding cause of action, but the Equality and Human Rights Commission (EHRC) will be able to enforce the new duty where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment.

The Act gives the Employment Tribunal the power to impose a 25% uplift on sexual harassment compensation where the new duty has been breached.

Comment

Under the preventative duty, employers will need to be able to show that they have taken proactive reasonable steps to prevent sexual harassment in their workplace.

The EHRC has recently published updated technical guidance (published on 26 September 2024) on what will amount to reasonable steps including an 8-step guide for employers.  The EHRC’s guidance makes it clear that the preventative duty includes worker-on-worker harassment as well as harassment by third parties such as customers or clients.

It is therefore vital for employers to consider the steps they need to take to ensure that there are measures in place when the preventative duty comes into force. We have made a list of recommendations for employers to consider having in place in readiness for the preventative duty: https://www.footanstey.com/our-insights/articles-news/26-october-2024-are-you-ready-mandatory-duty-to-prevent-sexual-harassment-in-the-workplace/

We are already working with clients on a range of measures including providing a fixed-fee sexual harassment policy, tailored training and strategic transformation discussions. Needless to say we would be delighted to work with you too!

See here for more details: https://www.footanstey.com/our-insights/articles-news/26-october-2024-are-you-ready-mandatory-duty-to-prevent-sexual-harassment-in-the-workplace/

(Applicable UK-Wide)

Summary

Physical documents, including Biometecric Residence Permits (BRPs), will be replaced by eVisas from 1 January 2025. The official cut-off date is 31 December 2024.

Comment

An eVisa is an online record of an individual’s immigration status and the conditions of their permission to enter or stay in the UK. eVisas will allow employees to continue to evidence their right to work in the UK and avoid difficulties when returning from travel overseas.

We recommend employers take the following steps in preparation:

1. Communicate a reminder to all staff that for those with a BRP expiring on 31 December 2024 they need to create a UKVI account. We recommend circulating the Home Office’s guidance and factsheets to staff at the same time.
2. Check your right to work records for workers’ visa expiry dates.If a manual right to work check was conducted on an individual’s BRP card, prior to 6 April 2022 (which was allowed at this time before the online check was required), then the expiry data may have shown 31 December 2024, when this is not the actual expiry date of that individual’s right to remain/work in the UK. As such, it may be prudent to conduct a further right to work check to understand the individual’s actual visa expiry date and retain your statutory excuse to a civil penalty.
3. Check your online right to work process and system is fully compliant because providing a share code to carry out online right to work checks will become the most popular method of checking a worker’s right to work.

Read more about the update and steps you can take here: https://www.footanstey.com/our-insights/articles-news/immigration-updates-for-employers-september-2024/

(Applicable UK-Wide)

Summary

The Labour Government have indicated their intention to implement the Plan to Make Work Pay in full and the introduction of Employment Rights Bill within 100 days of government, i.e. by 12th October 2024.

Comment

The Bill has been tipped as potentially being the biggest package of reform for employment rights in a generation. The headline anticipated changes we expect to see are:

(a) Introducing day one rights, including protection from unfair dismissal, parental/paternity leave and the right to statutory sick pay.

(b) Rebalancing ‘one sided’ flexibility. This is expected to include banning or restricting zero hours contracts.

(c) Trade Union reforms. This is expected to include securing electronic voting for union ballets, simplifying the trade union recognition processes and creating a mechanism for collective grievances.

(d) Whistleblowing. Proposals are expected to strengthen protections for whistleblowers, including for those reporting sexual harassment at work.

(e) Restricting fire and re-hire/replace. The details remain unclear but a higher standard/reason for firing and re-hiring is likely to be required of employers. A new statutory Code is also expected to “strengthen” the one previously published in June 2024.

(f) Equality and discrimination reforms including extending the right to equal pay based on ethnicity and disability. New pay gap reporting obligations are also expected in respect of ethnicity and disability, as well as requiring certain employers to publish “action plans” to address gender pay gaps.

(g) Procedural and other changes are also expected including extending the time limit for tribunal claims and moving towards a single worker status. This would enhance the rights of many workers.

Once the Bill is introduced, when exactly it will become an Act (and therefore law) remains to be seen but this will likely take many months post-introduction given its required passage through the houses of parliament as well as potential for secondary legislation in addition to effect any changes. This should provide employers with some time to prepare for the changes.  There may be some changes that can occur outside the Bill itself (and therefore potentially become enshrined in law more quickly) but until we see the draft legislation, this is unknown.

See here for more details, including the anticipated impact on employers and how to prepare in the meantime: https://www.footanstey.com/our-insights/articles-news/the-kings-speech-what-are-labours-plans-for-employment-law/

Summary

The Neonatal Care (Leave and Pay) Act 2023 has made provision for a new right for parents whose babies spend time in neonatal care units:

• Statutory neonatal care leave will apply for a period of up to 12 weeks (with a minimum entitlement of one week), dependent on the length of the child’s requirement for neonatal care. The new right to neonatal leave will be a “day one” right.
• Neonatal care pay will be set at statutory rates. A qualifying service period of 26 weeks will apply for parents seeking neonatal care pay.

The specific rules relating to neonatal care and pay are due to be clarified in future statutory instruments, with the new neonatal leave and pay entitlements expected to be delivered in April 2025.

Action points

1. A new policy will be needed covering the rules relating to this new leave and pay when they are clarified.
2. This new right will also need to be cross referenced in other relevant family-leave policies.
3. Consider whether you will enhance pay for leave of this kind.

(Applicable to England and Wales)

Summary

A recent ruling in the Court of Appeal has upheld Morrisons’ £3.5 million fine for health and safety related breaches. The court held that an employer should be taking reasonably practical steps to mitigate against health and safety risks arising out of an employee’s specific circumstances, even where no such risk would have arisen had it not been for such circumstances.

Comment

For further discussion on this case, please see our article: Morrisons case confirms employers must take reasonably practicable steps to ensure the safety of each and every employee not just the majority | Foot Anstey

(Applicable to England and Wales)

Summary

During the opening of the new parliament, the King unveiled a new Water (Special Measures) Bill to strengthen regulation, give the water regulator new powers to ban the payment of bonuses if environmental standards are not met and increase accountability for water executives.

Comment

This Bill was introduced in Parliament on 4 September 2024 and is currently at its second reading in the House of Lords.  Foot Anstey will continue to monitor this topic as the new bill progresses through parliament.

Applicable to England and Wales

Summary

A historic judgment was handed down in the UK Supreme Court. The case concerned whether a local planning authority was required to include in its environmental impact assessment an assessment of the impact of scope 3 greenhouse gas (GHG) emissions of a proposed project, in this case, downstream oil production, as well as scope 1 and 2 emissions. The Supreme Court held, overturning the decision of the Court of Appeal, that the authority was required to consider Scope 3 GHG emissions in these circumstances. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571 (the “EIA Regulations”) require assessment of the ‘direct and indirect significant effects of a project’ on the climate. The Supreme Court held that this was a matter of causation and there was obvious causation that would arise from the combustion of fuel following refinement of crude oil which would give rise to effects on the environment.

Comment

The impact of this case is that new fossil fuel projects which require environmental impact assessment under the EIA regulations will require assessment of GHG emissions which arise from the use of the final product. It is yet to be seen whether this ruling will extend beyond fossil fuel projects to any project requiring environmental impact assessment under the EIA Regulations.

(Applicable to England and Wales)

Summary

The Supreme Court has decided that the statutory scheme for regulating sewerage established by the Water Industry Act 1999 does not prevent the owner of a canal or other watercourse from bringing a private claim in nuisance or trespass when the watercourse or canal is polluted by discharges of foul water, even if there is no negligence or deliberate wrong doing on the part of the utility company or statutory undertaker.

Comment

As there has been considerable coverage of alleged sewage pollution incidents by utility companies in the media, there may be a rise in claims from owners of waterways or property subject to similar unauthorised discharges of foul water.