Utilities & Infrastructure

(Applicable to England and Wales)

Summary

The Cyber Security and Resilience Bill which is expected to be introduced in Parliament in 2025 aims to modernise and strengthen the UK’s cyber defences. The Bill seeks to address vulnerabilities exposed by recent high-profile cyberattacks. The Bill will:

• expand the scope of existing regulation;
• broaden the powers that regulators have to ensure cyber security measures are being implemented; and
• institute the mandatory requirement to report cyber incidents, including ransomware attacks.

Comment

The Bill represents a significant shift in the UK’s approach to cyber security and utilities providers and infrastructure operators should prepare for the more rigorous compliance obligations.

(Applicable globally)

Summary

The Royal Institution of Chartered Surveyors (RICS) has conducted a public consultation on its “Responsible Use of Artificial Intelligence (AI) professional standard”. This initiative aims to provide clear guidance for RICS members and regulated firms on integrating AI into surveying practices, and to promote accountability across all RICS-regulated sectors.

This consultation closed on 29 April 2025 and an updated standard is expected shortly.

Comment

The development of this standard will help ethically integrate AI within the built environment. Organisations which are looking to use AI to support asset management, monitoring infrastructure and delivering projects should use this standard as a framework for using AI transparently and with the necessary accountability.

The Data (Use and Access) Act (DUA) received Royal Assent on 19 June 2025. The Act modernises data governance by facilitating secure data sharing, enhancing digital identity verification, and improving public service delivery. Please refer to Section 142 of the Act for confirmation of the provisions under it which are now in force.

Comment

Due to the changes which have been, or will shortly be implemented by the Act, it is important that all companies ensure their data management practices are up-to-date and to be prepared for any supplementary regulations. In particular, companies should be abreast of the proposed changes set out below:

Data Subject Access Requests (DSAR’s)

• Only reasonable and proportionate searches are to be required;
• The 1-month response time to start from the point of receipt of additional information (e.g. ID being received); and
• The bill includes provisions relating to the collective management of data rights, which will allow individuals to assign their data rights to be asserted collectively.

Automatic Decision Making (ADM)

• Under the Bill, ADM restrictions apply only where a significant decision relating to Special Category Personal Data is concerned;
• The Bill additionally confirms that “Legitimate Interest” cannot be relied on as a basis for using ADM; and
• The Bill relaxes other rules relating to ADM, allowing for greater use of ADM and, as a result, Artificial Intelligence. Please get in touch with Foot Anstey’s data team if you wish to discuss any issue linked to this.

Cookies and Tracking

• The Bill defines areas where use of cookies and tracking is “strictly necessary” e.g. for preventing fraud, ensuring equipment safety, storing selections made on webpages and clarifies the transparency obligations which apply when organisations rely on this ground;
• It also institutes changes to the right to object and no sharing; and
• It extends the extension of the “Soft Opt-In” to charities.

Expansion of Legitimate Interests Ground

• The Bill clarifies that organisations can rely on the Legitimate Interests ground for (1) direct marketing (2) intra-group transfers (3) IT security; and
• It provides a recognised legitimate interests list which applies to the carrying out of public interest data processing.

(Applicable to England and Wales)

Summary

Two separate Ofwat investigations into Thames Water have revealed failures by Thames Water to build, maintain and operate adequate infrastructure to meet its obligations, and breaches of rules relating to dividend payments. The former has resulted in the imposition of a record £104.5 million penalty, the largest penalty Ofwat has ever issued. An additional penalty of £18.2m has been levelled against Thames Water for the latter set of breaches linked to dividend payments.

(Applicable to England and Wales)

Summary

Energy companies have agreed to pay £18.6 million in compensation and debt write-offs for more than 40,000 customers arising from the force-fitting of prepayment meters.

Since 2022, Ofgem has reviewed more than 150,000 cases involving customers that struggled to pay their bills after being involuntarily compelled to install pay-as-you-go meters.

The compensation figures announced by Ofgem do not include provision for affected British Gas customers, as this is instead in the remit of a separate inquiry that has not yet concluded. Ofgem has stated that other suppliers will pay a total of £5.6 million in compensation to 40,000 customers and write off a further £13 million of affected customers’ debt.

Summary

In a recent judgment, the High Court has ruled that MVL Properties (2017) Limited (MVL) was not in breach of Article 1 of the First Protocol to the European Convention on Human Rights (A1 P1 ECHR) in opposing the grant of a new tenancy to The Leadmill Limited (Leadmill) under s.30(1)(g) of the Landlord and Tenant Act 1954 (LTA).

Leadmill occupied the premises as a nightclub and had gained a distinctive reputation as a music venue in Sheffield. MVL wished to occupy the premises themselves as a nightclub and music venue under a different name. Leadmill argued that Section 30(1)(g) should not apply to cases where a landlord intends to carry on the same business as the tenant because MVL’s new venue would mislead customers into believing that the new venue was associated with Leadmill’s “goodwill” (an intellectual property right associated with reputation) and this “goodwill” was a “possession” under A1 P1 ECHR.

The High Court decided that Section 30(1)(g) did not breach A1 P1 ECHR and awarded MVA possession of the premises because:

• While “goodwill” can be a “possession” under A1 P1 ECHR, the tenant must prove and evidence the presence of goodwill; a stated value is not enough.
• Even if a tenant can prove “goodwill”, the LTA only provides a tenant with a contingent right to renew; therefore, a tenant cannot be lawfully deprived of their “possession”.
• It is not in the public interest to prevent a landlord from recovering their property.

Comment

This High Court judgment confirms that tenants who trade on their name and reputation are not entitled to rely on “goodwill” alone to displace the landlord’s statutory right to regain possession of their property, even if the tenant’s business benefits from a notable reputation and longstanding history. The public interest is in maintaining the integrity of commercial property law without eroding its predictability and disrupting a landlord’s right to their property.

Read our article here.

(Applicable to England and Wales)

Summary

The Upper Tribunal’s (UT) decision in BNPPDS(J) Limited and Bci Limited V Amanda Hitchings (Valuation Officer) [2025] has reiterated key principles regarding the rateable value of properties undergoing refurbishment.

This dispute involved a warehouse in Newcastle undergoing substantial refurbishment from 28 November 2022 to 24 March 2023. The works involved fitting out the property as a “dark kitchen” for use by McDonalds.

The issue in question was whether the property was capable of beneficial occupation during the refurbishment period, impacting its rateable value (the value ascribed to a domestic or commercial building based on its size, location, and other factors, used to determine the rates payable by its owner).

The UT held that the property was not capable of beneficial occupation during the refurbishment, and consequently its rateable value should be reduced to £1 during this period.

Comment

This decision provides clarity for property developers and owners, confirming that substantial refurbishment rendering a property unoccupiable can justify a temporary reduction in the rateable value.

(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 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

The Institute of Directors (IoD) announced the establishment of a new commission to examine the role of non-executive directors (NEDs) and how it may need to evolve to meet the current and future needs of businesses in the United Kingdom.

(Applicable to England and Wales)

Summary      

Companies House has launched a new voluntary online service which enables individuals to verify their identity directly through its platform. This identity verification scheme is set to become compulsory for all users from autumn 2025.

Comment

This development follows the introduction of identity verification measures under the Economic Crime and Corporate Transparency Act 2023 (ECCTA 2023). ECCTA 2023 is a significant legislative reform to UK company law aimed at tackling financial crime and improving corporate transparency.

Please see Foot Anstey’s latest commentary on the Economic Crime and Corporate Transparency Act.

(Applicable to England and Wales)

Summary

The Government has published a new Cyber Governance Code of Practice to support boards and directors in managing digital risks, and in protecting their organisations from cyberattacks.

(Applicable to England and Wales)

Summary

The Government has introduced regulations which will remove certain overlapping requirements from the directors’ remuneration reporting framework, and clarify certain powers of the UK audit regulator. These came into force on 11 May 2025.

(Applicable to England and Wales)

Summary

The Financial Reporting Council (FRC) published updated ‘Guidance on the Going Concern Basis of Accounting and Related Reporting, including Solvency and Liquidity Risk’ (Guidance). The key changes established are as follows:

• the Guidance applies to all UK companies, excluding small companies and micro-entities, as companies applying the UK Corporate Governance Code fall within scope. It encloses a table outlining the specific requirement for each type of company and highlights sections that may assist the board to identify and adhere to reporting obligations;
• the Guidance incorporates changes in accounting and auditing standards;
• the Guidance provides further guidance on overarching disclosing requirement; and
• the Guidance provides further insights into techniques that may support the board’s assessment process.

Comment

The Guidance is non-mandatory and aims to provide proportionate and practical guidance to all UK companies within its scope.

(Applicable to England and Wales)

Summary

The Department of Business & Trade (DBT) has updated its published guidance for reporting on payment practices and performance.

The key amendments are:

• an update to the meaning of “balance sheet” to determine whether a company/LLP exceeds two or all of the thresholds for qualifying as a medium-sized company under section 465(3) of the Companies Act 2006;
• further guidance in relation to the additional reporting requirements introduced by the Reporting on Payment Practices and Performance (Amendment) Regulations 2024;
• examples and further guidance on the phrase “receipt of invoice”; and
• further guidance on reporting statistics where supply-chain finance applies.

Comment

These new requirements will apply in relation to each financial year of a company beginning on or after 1 January 2025, relating to the sum total of payments made during the reporting period and the percentage of payments that were paid during the reporting period which were not paid within agreed terms because of a dispute.

(Applicable UK-Wide)

Summary

The Financial Reporting Council (FRC) published its consultation on the changes to its Stewardship Code on 11 November 2024, requesting responses by 19 February 2025.

Comment

The aim of this consultation is to assist the effective disclosure and stewardship practices to enable accurate investor reporting which will be assessed by the FRC as an independent and impartial body.

(Applicable in England and Wales)

Summary

The Procurement Act 2023 came into force on 24 February 2025 and applies to all new tender processes commenced on or after 24 February 2024 (existing tenders and contracts will continue to be governed by the relevant procurement Regulations).

The main theme of the Act is that contracting authorities (i.e. central and local government and other public bodies) should be awarding contracts for works, services and supplies (in excess of certain specified thresholds) only following fair and transparent tender processes.

The Act intends to simplify the tendering procedures by streamlining the mechanisms involved and provides that, subject to certain limited exceptions, contracting authorities must “have regard to the National Procurement Policy Statement.

(Applicable in England and Wales)

Summary

The new Planning and Infrastructure Bill was introduced to the House of Commons on 11 March 2025. The bill has 5 overarching objectives aimed at improving the speed, the efficiency and the consistency of the planning process, plus removing barriers to development:

1. Delivering a faster and more certain consenting process for critical infrastructure;
2. Introducing a more strategic approach to nature recovery;
3. Improving certainty and decision-making in the planning system;
4. Unlocking land and securing public value for large scale investment;
5. Introducing effective new mechanisms for cross boundary strategic planning

Some of the key reforms in the bill include:

Spatial Development Strategies (SDSs)

Spatial planning is back on the agenda, as the government looks to re-introduce cross-county co-operation on planning throughout the country.

Delegation of Planning Decisions (England only)

In an effort to improve national consistency, the Secretary of State will be able to direct which planning decisions are made by planning committees and which can be made by planning officers, and in some cases the Secretary of State may limit the size of planning committees.

Sub-delegation of Planning Fees (England only)

Under the new Bill, the Secretary of State will have the power to sub-delegate the setting of planning fees to LPAs. The fees will be ringfenced to the costs of the LPA of determining the application and cannot be used for cross-subsidisation of other services. The Secretary of State will have the power to intervene where fees appear excessive or unjustified.

Planning Committee Reforms (England only)

Continuing the theme of national consistency, there will be a national scheme of delegation that will dictate which decisions are to be made by planning committees and which are to be made by officers.

Committee members will also be required to undertake mandatory training before they can make planning decisions

Comment

The Bill is now being debated in the House of Lords. Most recently, the Bill saw its second reading in the House of Lords on 25 June 2025.

We will have to wait to see the final form of the Bill once agreed by Parliament, and consequently we are still some way off from seeing the effect of these reforms, should they be implemented.

Nevertheless, concerns have already been raised that the ringfencing of planning fees may have the effect of restricting, rather than increasing, the available fees as LPAs will have less ability to cross-resource where needed.

(Applicable in England and Wales)

Summary

As part of the Planning and Infrastructure Bill 2024/25, the government are seeking targeted NSIP reform with an emphasis on streamlining the process and removing barriers to delivery. This is to help the government reach its target aim of at least 150 Development Consent Orders (DCO) during the current Parliament.

The Bill aims to achieve this in a number of ways:

Updates to National Policy Statements

National Policy Statements provide policy guidance on how NSIP applications are prepared and determined. Under the current system they are taking a long time to update meaning that some of the provisions are out of date by more than 10 years which fails to capture technological, sector and policy developments. Under the new Bill they will need to be updated every 5 years and there will be routes to make changes outside of the 5 yearly cycle where required.

Flexibility on Consenting Routes

The Secretary of State will have the power to direct projects out of the NSIP regime on a case-by-case basis where an alternative consenting route may be more suitable.

Streamlining Consultation

• Changes will be made to enable more concise consultation reports;
• The acceptance criteria in the Planning Act 2008 will be changed to enable the Planning Inspectorate to require corrective action ahead of examination (rather than having to withdraw/reject an application);
• The requirement to consult category 3 persons (those who might have a relevant claim under the Compulsory Purchase Act) will be removed. Instead, they will be notified at acceptance stage;
• A new duty will be introduced for statutory consultees and Local Authorities to have regard to guidance;
• The disincentive to engage in the DCO process between acceptance and preliminary meetings will be removed for statutory consultees, Local Authorities and those affected by compulsory acquisition

Judicial Review

• The Bill removes the paper permission stage for Judicial Reviews of NPSs and DCOs.

• The right to appeal will be removed for cases deemed totally without merit at the oral permission hearing at the High Court.

Comment

The DCO process as it currently stands is thought to be delaying large scale infrastructure development and consequently the proposed reforms to NSIPs have generally been welcomed as a means to unlock development. The approach to dealing with these projects holistically, strategically and at a national level is a positive step towards ensuring key infrastructure decisions are not being stifled at the local level.

In terms of the National Policy Statements (NPs) which underpin NSIP consenting, it has long been understood that the current NPSs are out of date and in need of reform if the government is going to achieve its mission of making Britain a ‘Clean Energy Superpower’. New NPSs are currently out for consultation, with the consultation window closing on 29 May 2025 so this area is one to watch.

(Applicable in England and Wales)

Summary

The Terrorism (Protection of Premises) Act 2025, also known as Martyn’s Law, received Royal Assent on 03 April 2025. This act is set to impose strict obligations regarding security on both freeholders of premises (including commercial properties, such as hotels and shopping centres) and tenants in occupation and aims to deliver the government’s manifesto commitment to strengthen the security of public events and venues. The act introduces a tiered approach, with those responsible for premises and events being required to fulfil different requirements according to the number of individuals it is reasonable to expect may be present. The responsible party for compliance with Martyn’s Law, is the party who controls the premises in regard to its use.

Comment

Those responsible for premises should carefully review the requirements and duties they may be responsible to implement. The act distinguishes between ‘standard duty premises’ and ‘enhanced duty premises and qualifying events’. ‘Standard duty premises’ are defined as premises and events with a capacity between 200 and 799 individuals. ‘Enhanced duty premises and events’ are premises and events with a capacity of 800 or more individuals.

Being able to ascertain which category property owners / event organisers fall into is crucial to understanding level of duties required, ahead of the planned implementation of the new provisions within the next 24 months.

(Applicable to Wales)

Summary

Last year, the Welsh Government conducted a consultation on the implementation of the Infrastructure (Wales) Act 2024, which was granted Royal Assent on 3 June 2024. As the Act provides Welsh Ministers with powers under a new process to determine applications for developments of significance to Wales and in Welsh water, it simultaneously aims to make the decision-making process more certain.. This consultation sought views on the Welsh Government’s proposals for the new consenting process, and for a system to administer and determine applications under the Act.

In June 2025, the Welsh Government published an official document summarising the responses obtained under this consultation with a number of initial comments which provide indication of how the Welsh Government intends to implement the Act.

In these comments, the Welsh Government clarifies that:

• It is in the process of considering an appropriate length for the time period needed between the passing of the Act and the point at which the infrastructure consenting process under it comes into force, and considers that whilst a period of 5 years for this is too long, a longer period will enable all parties to prepare for the system.
• It will provide guidance to support the introduction of the new consenting process.

The projects that will be directed into the new consenting system governed by the Act will remain largely based on subordinate legislation associated with the Act (as reflected in the initial consultation document) but the Welsh Government will seek to widen the scope of this following consultation responses that identified additional projects which may warrant direction.

(Applicable to England and Wales)

Summary

The Planning Inspectorate (“PINS”)  has published guidance on Nationally Significant Infrastructure Projects (“NSIPs”) and Development Consent Orders (“DCOs”) and procedure under the Planning Act 2008 (the 2008 Act”).  These guidance documents are being continually updated, with the most recent update being made on 1 April 2025. The new advice pages provide advice on NSIPs / DCOs in regards the following:

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;
4. advice on drafting Development Consent orders;
5. advice on working with public bodies in the infrastructure planning process

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. registering to speak at, or attend, a NSIP event

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 to England and Wales)

The government have issued a plan with the sole focus of speeding up the identification and remediation of unsafe cladding on high-rise residential buildings in England. Following the final public inquiry report on this issue in September 2024, the government promised to accelerate the speed of remediation, however criticisms have since followed, with many questioning the change in pace. However, in line with their stated intention, the Governments launched the Remediation Acceleration Plan (RAP) on 2 December 2024, with the overall aim of speeding up the remediation of unsafe cladding on residential buildings.

Alongside this overall aim, the RAP’s three broad objectives are to:

• Fix buildings faster;
• Identify all buildings with unsafe cladding; and
• To support residents.

To ensure that these objectives are met, the government is aiming to create a legal obligation on landlords to remediate the cladding. ‘Severe penalties’ will be implemented, if guidance is not adhered to. The government is simultaneously aiming to help developers, by providing guidance on the process, and working with regulators to intensify enforcement action against any third parties who unreasonably block remediation. A review of RAP’s impact and success is scheduled for Summer 2025

Comment

It is important for developers to be aware of these changes, and to work with the Government to prioritise the remediation of cladding in an efficient manner.

(Applicable in England and Wales)

Summary

The government has published a consultation on draft regulations to implement changes to the valuation framework for calculating rent on the renewal of agreements that confer rights under the 2017 Electronic Communications Code. The consultation focuses on the draft regulation to implement sections 61 to 64 of the Product Security and Telecommunications Infrastructure Act 2022.

This consultation closes on 2 July 2025.

(Applicable to England)

Summary

The mandatory BNG regime for all TCPA (Town and Country Planning Act) developments came into force on 12 February 2024. Since this date, developers have had a statutory obligation to ensure a 10% improvement in biodiversity per development. On 14 March 2025, the government published its first annual report around the income taken from statutory BNG credits. This is the first time data has been published which gives an overall picture of the market for statutory BNG credits. Statutory BNG credits are the third rung of the biodiversity hierarchy, with developers having a duty to firstly consider mitigation on site, followed by purchasing off-site units from third parties such as habitat banks, and only if neither of the first two options are available can they purchase statutory credits.

The report showed that £247,416 had been received for credits in the year from 12 February 2024 – 11 February 2025.

In addition to the recent fiscal report, Dr Nick White of Natural England has confirmed that Natural England are currently working on a monitoring and evaluation framework – the first report of which is expected shortly (precise date not given). The report will look at how the BNG system has been working so far and whether it has been smoothing planning processes as intended.

Comment         

Amongst the developments we expect to see in BNG:

• Securing off-site BNG requires either a Section 106 Agreement or a Conservation Covenant to be agreed. Where a Section 106 is agreed with the LPA, a Conservation Covenant is agreed with a ‘responsible body’ of which there are, at the date of writing, 28 recognised institutions, several of them also being local authorities.
• BNG is currently only mandatory for developments subject to the TCPA, which means that NSIPs (Nationally Significant Infrastructure Projects) are exempt. This will change in May 2026, when the mandatory regime is due to extend to NSIPs. We can expect to see a surge in interest in BNG leading up to November, with the possibility that demand may drive down the overall price of the off-site credits.

(Applicable to England and Wales)

Court of Appeal sheds light on the extent to which S73 applications can alter developments

Summary

In a recent decision of the Court of Appeal the court provided clarity on the scope of section 73 planning permissions in a case that found against the solar farm developer who had sought to change the size and location of a substation after the original planning permission had been granted.

Section 73 of the Town and Country Planning Act 1990 can be used to vary the conditions of planning permission after it has been granted, usually where various details about the site have changed over time. However, a central feature of section 73 is that it is used to vary the conditions of a planning permission and not operative part (the main description of the permitted development). In fact, a section 73 application stands as its own separate planning permission, with developers entitled to choose which permission to implement, as a section 73 application does not supersede a previous application.

The developer in the case had obtained full planning permission in 2017, and the operative part of that permission included in its description reference to a ‘substation’ in accordance with the approved plans, which included a drawing detailing a 33kV substation. Consequently, this 33kV substation was understood to form part of the main ‘operative’ part of the planning permission. The developer later sought to vary the conditions using section 73, introducing a new 132kV substation and omitting reference to the original substation. A challenge was brought against the council’s decision by a local resident, Mrs Chala Fiske, that section 73 had been mis-applied. The High Court agreed with Mrs Fiske, stating that section 73 could not be used to make fundamental changes to a planning permission. Test Valley Borough Council consequently appealed to the Court of Appeal resulting in this judgement.

The judge in the case dismissed the appeal on the basis that the developer had sought to use section 73 to alter the operative part of a full planning permission and that this was not possible under the legislation. Consequently, because the developer had chosen to specify the inclusion of the 33kV substation in its description of the development, it was not possible to retrospectively change this.

Crucially, the judge also confirmed that it is possible to make both substantial and fundamental changes under section 73, as long as they do not alter, or conflict with, the operative part of the planning permission. This has provided much needed clarification to the legal position, as the High Court decision in Fiske stood in contradiction to other recent judgements, such as Armstrong v Secretary of State for Levelling-Up, Housing and Communities [2023] EWHC 142 (KB), by asserting that substantial changes could not be made to a planning permission using section 73. This recent Court of Appeal decision confirms that substantial changes can be made, providing they are not inconsistent with the operative part of the planning permission.

Comment

The cautionary tale for developers is to ensure that the description of the development when submitting a planning application is as broad and flexible as possible in order to allow greater scope for changes down the line. Specificity, in this case, could be costly.

It is also particularly relevant for developers to bear in mind that with the increase in development across the country, spearheaded by the government, they are likely to run into increased opposition from highly motivated local residents scrutinising applications for anything that may be used to de-rail the development. Consequently, to avoid the cost and delay of challenge, the planning process will need to be followed to the strict letter of the law.

This ruling has extended the growing body of evidence addressing the extent to which section 73 applications can change the ambit of an existing permission grant. This question has been litigated in a number of different ways in recent years and Foot Anstey has kept track of these developments here, here and here.

(Applicable UK-wide)

Are costs incurred investigating damage recoverable, even is no damage is found?

Summary

In the recent case of Sky UK Limited & Anor v Riverstone Managing Agency Limited & Ors, the Court of Appeal provided some welcome clarification on:

1. What constitutes “damage” in a construction context.
2. Whether insurers are liable post period of insurance (“POI”) for deterioration and damage development.
3. Whether costs incurred investigating potential damage are recoverable, even if no damage is subsequently found.

Comment

Please see Foot Anstey’s fuller update on this case here.

(Applicable to England and Wales)

Court will not take an overly legalistic approach to notices under a construction contract where communications between parties have occurred more informally.

Summary

In the recent case of Jaevee Homes Limited v Mr Steve Fincham (trading as Fincham Demolition) the Technology and Construction Court considered:

• the principles of formation of contract made through informal communications; and
• whether a simple invoice could be considered an application for payment.

The case concerned a contract for demolition of a nightclub but as with any case law, the principles can be applied more widely. Although the parties met in person and the contractor issued a written quotation, they then discussed further by email and Whatsapp message exchange. The Court found that:

• clear signals to go ahead with the work for the agreed price can demonstrate that an agreement has been reached at this point; and
• where communications between the parties have been less formal, the Court will not take an overly legalistic approach to applications and notices under a construction contract.

Comment

This case signals the importance of negotiating “subject to contract” and ensuring contract terms are settled before work commences (unless a suitable pre-construction agreement is in place). It also highlights how informal communications can be evidence of contract terms, a reminder to ensure staff/agents exercise due caution when communicating on behalf of a party.

(Applicable to England)

Summary

On 6 May 2025, the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2025 (SI 2025/560) was made. The Order makes changes to permitted development rights (PDRs) for electric vehicle (EV) charging and air source heat pumps on domestic premises. These changes came into force on 29 May 2025.

The change removes major barriers for landlords and property agents in England, who wish to upgrade their properties with low-carbon technology, including the 1 meter boundary rule.

Comment

The change is a welcomed regulatory update for the Energy & Infrastructure Sector, as it is set to unlock thousands of properties previously constrained by restricted outdoor space.

(Applicable to England, Wales and Northern Ireland)

Summary

DESNZ are seeking feedback from organisations in the Energy & Infrastructure sector on its proposal to mandate the introduction of solar canopies on new outdoor car parks in both public and private ownership.

This call for evidence closes on 18 June 2025.

(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 Government has accepted the recommendations of the Low Pay Commission in full, and in doing so, will raise the National Minimum Wage, including the National Living Wage.

The new rates, applying from 1 April 2025, are as follows:

• National Living Wage (21 and over): £12.21 (6.7% increase)
• 18 – 20-Year-Old: £10.00 (16.3% increase)
• 16 – 17-Year-Old: £7.55 (18% increase)
• Apprentice Rate: £7.55 (18% increase)
• Accommodation Offset: £10.66 (6.7% increase)

Comment

This will be good news to those paid at minimum wage but some employers’ operational costs are likely to increase as a result. Some observers have also warned that the changes may make employers less likely to hire younger workers.

(Applicable UK-wide)

Summary

At the end of October 2024, Chancellor Rachel Reeves published Labour’s first budget since their general election success. The budget brought confirmation of the Government’s plans to increase employer’s National Insurance rates from 13.8% to 15% in April 2025. Moreover, employers will start paying the rate on salaries of £5,000 per year, down from £9,100.

Comment

According to the Chancellor, these changes will provide £25 billion of extra funding for public services, such as the NHS. However, some employers are concerned at the rate increase in a time when businesses are already struggling to balance the books. With some businesses reportedly considering headcount reductions as a result, where widescale change is needed collective consultation rules will apply and businesses will need to make sure that they have complied with correct consultation procedures to avoid being hit by additional costs when making redundancies or other significant changes to terms and conditions.

(Applicable UK-wide)

Summary

The Environment Agency (EA) has launched a consultation which proposes changes to its enforcement and sanctions policy in order to extend its regulation to manufacturers of fossil-fuel based boilers and heat pumps identified under the Government’s Clean Heat Market Mechanism scheme.

The consultation seeks views on: its penalty-setting approach for CHMM financial civil penalties; types of CHMM civil penalties; when and how the EA will apply discretion to CHMM penalties; how the EA calculates the penalty amount; and the procedure for imposing penalties.

The consultation closes at 23.59 on 15 July 2025.

(Applicable UK-wide)

Summary

Effective from 1 September 2025, the “Failure to Prevent Fraud” offence holds large organisations criminally liable if an employee, agent, subsidiary, or other associated person commits fraud intended to benefit the organisation, and the organisation lacked reasonable fraud prevention procedures at the time.

Comment

The utilities and infrastructure sector, which often involves large, complex supply chains, joint ventures, and public-private partnerships, will be inherently vulnerable to fraud risks. Infrastructure projects (especially those funded by public money) will come under greater scrutiny, and failure to comply could result in reputational damage, prosecution, and financial penalties.

(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 here.

(Applicable to England and Wales)

Summary

From 12 February 2024, the mandatory requirement for developers to provide biodiversity net gain (BNG) came into force. The planning condition requires at least 10% BNG for new planning applications for development under the Town and Country Planning Act 1990 that results in loss or degradation of habitat. BNG for small sites (of between one and nine dwellings) will apply from 2 April 2024.

Comment

BNG requirement is now in force. Biodiversity Net Gain requirements will begin to apply to Nationally Significant Infrastructure Projects in England from November 2025

(Applicable to England and Wales)

Summary

The mandatory requirement for developers to provide biodiversity net gain (BNG) came into force on 12 February 2024. As a reminder, this requires developers to demonstrate at least 10% BNG gain for new planning applications for development under the Town and Country Planning Act 1990 that results in loss or degradation of habitat.

These biodiversity Net Gain requirements will begin to apply to Nationally Significant Infrastructure Projects in England from May 2026.