As part of the Government’s Plan for Change, to build 1.5m new homes and critical infrastructure by 2030, we are seeing a push by the Government to promote and develop a greater number of larger housing schemes and strategic new settlements. This article explores some of the issues applicable to landowners and developers who may be considering becoming involved in these larger housing schemes.

The current average size for a residential development scheme in England is around 60 homes, but under the Government’s new strategy we are likely to see a trend towards more larger scale developments. We look at some of the considerations and issues that landowners and developers should be aware of:

1. Different approach to planning

It is sometimes difficult to deliver strategic sites which are in multiple landownerships via traditional planning permissions. Instead, the facilitation for larger schemes may be achieved via Supplementary Planning Documents and/or Local Development Orders (LDOs). LDOs were brought in to simplify or streamline the planning process for the delivery of larger schemes. Although they provide permitted development rights, they still involve approvals and satisfaction of conditions under a truncated planning process which individual landowners and developers will need to understand and comply with fully. LDOs may be accompanied by design code policy requirements which developers could find difficult or more expensive to implement. Government and industry bodies like the CBI, see LDOs as a valuable catalyst for development, but they require political impetus to establish and are usually time limited. A few New Towns (over 10,000 homes) around the country would of course help to increase the numbers of homes significantly, but (without meaningful Government intervention) it generally takes a while for approval to be obtained. Then the delivery rate is still dependant on a large range of issues from availability of materials and a skilled workforce, to a strong financial package being in place from the start (the enabling infrastructure costs of a New Town are massive), to the actual uptake for the range of housing being provided, to there being individuals who are able to afford to buy and or rent or obtain a suitable mortgage product. Historically, the delivery rate of New Towns has not kept pace with aspirations. Will we therefore see a greater focus on slightly smaller schemes, perhaps of 3,000 to 5,000 homes, under a conventional Local Plan allocation and then outline application route? With the recent changes to the Green Belt/Grey Belt rules and the Government’s strong drive for a huge increase in houses, we are seeing some landowners considering putting forward their sites without first trying to obtain an allocation.

2. Infrastructure requirements

Larger schemes often require new or significant upgrades to existing infrastructure e.g. roads, grid infrastructure, renewable energy, schools, doctors’ surgeries and other community facilities. The infrastructure requirements are often such that many of the above need to be installed a while before any value generating development and they may require works on a sitewide basis and significant commitments from third party infrastructure developers and operators. This makes it very difficult or impossible for SME developers of individual land parcels comprised within a larger scheme area to fund the delivery of infrastructure without third party help, either from statutory undertakers or the public sector, such as Homes England. There are calls for new types of (and more flexible) finance for this scale of infrastructure to be provided, perhaps on the basis of Government backing/guarantees.

3. Public funding

If such Government backed funding packages do not become readily available, additional public funding is more likely to be required for larger schemes with greater infrastructure requirements. This may necessitate a greater level of public sector involvement in the project, as for example local authority sponsorship is required in order to secure infrastructure funding, through initiatives such as the Housing Infrastructure Fund. The allocation of funding, timing of applications, and grant application process as well as local politics are therefore likely to play a more significant role in these projects where there is a greater political dynamic. Local politics undoubtedly play a much greater part in the promotion of larger sites because of the actual or perceived impact of the resulting development.

4. Compulsory purchase powers

Government is encouraging greater use following broadening and streamlining of powers under the Levelling Up and Regeneration Act 2023, and with further reforms proposed under the Government’s latest Planning and Infrastructure Bill. It remains the case that compulsory purchase will be an option intended for where negotiations have not succeeded and where there is a compelling case in the public interest. Acquiring authorities are being encouraged to use the powers to progress stalled schemes or where there are viability challenges. For landowners, navigating compulsory purchase can be complex and there are very specific processes to follow and rules around valuation and compensation.

5. Land assembly and local authority lead

Coordinating land assembly is frequently a challenge for complex sites. Multiple landowners must reconcile their individual interests and priorities to fit with those of their neighbours, in order to deliver a successful development. Landowner collaboration agreements are usually required to enable landowners to work together and to overcome the risk of being ransomed by competing nearby development. On bigger schemes, we are seeing a trend towards local authorities taking more of a lead role. This is particularly the case where an authority is looking to give a scheme strategic priority, or allocate significant resources or necessary funding. In these circumstances, we see evidence of authorities looking to take a project lead or development management role.

6. Phasing of delivery

Given their scale, strategic developments are phased with development taking place in multiple tranches over many years. The phasing of tranches may not align with the boundaries of individual landowners’ holdings or the contribution of their ownerships. Phasing therefore gives rise to a much greater need for landowners to coordinate when and how their land is promoted and disposed of for development. Taxation and succession issues can be very significant factors. An individual landowner may need to ensure that they dispose of their whole interest to benefit from certain tax reliefs e.g. Business Asset Disposal Relief, or otherwise in order for the landowner to be left with a reduced land holding that remains viable to support the operation of any existing business that trades from the property. It may be very difficult for example for a dairy farmer to support their herd if they dispose of half or their original acreage.

7. Succession issues

There are considerations of timing and future planning that landowners need to think about before committing to a longer-term strategic land project. What makes good sense now in terms of disposing of an existing farming business may not hold true in the medium term, particularly if there is a realistic possibility of generational succession over that period. Conflation of development and agricultural land values can create unwelcome consequences for increased inheritance tax liabilities. On the other hand, given the long gestation of strategic development land projects, landowners may have no choice but to bind in their land for the medium to long term if they are to stand a chance of getting it developed.

8. Challenges of scale

Bigger schemes bring a range of additional considerations. Although the promise of development on a bigger scale appears an attractive and a neat way to increase the speed of housing delivery and utilisation of a much greater proportion of a landowner’s land holding, that is not always the case. Housing supply and demand operates differently at local and national levels. Developing too many homes too quickly or with too many outlets locally risks market distortion and damage. Many regional housebuilders or even regional offices of national housebuilders are not well placed to bear these impacts which can undermine the success and viability of undertaking larger schemes. As the market currently operates, larger schemes are not necessarily cheaper or quicker to deliver, and without suitable checks and balances in place in favour of the landowner may result in a discounted return in land values offered to landowners once a scheme exceeds a critical size.

9. Contamination

This remains an ongoing financial challenge for all types of development. It is of course extremely important for appropriate checks to be made at the right time in the option, application or purchase process.

10. Natural Capital

All largescale development now needs to consider Biodiversity Net Gain. Although the BNG hierarchy remains the same, requiring onsite provision to be considered before offsite, the cost of delivering onsite BNG when compared to the price of buying units from offsite habitat banks, is encouraging some developers to favour this offsite approach. For some proposed developments, the landowner is planning to roll out a habitat bank on another part of the overall landholding, from the area which is being put forward for housing development. This will, in addition, remove the practical challenges for developers providing BNG on site – the quality of piecemeal onsite BNG is never going to be as good as that provided over a wider offsite area, especially where the habitat is away from dog walkers or others wishing to make the most of some green recreation space. Some sites will also need to consider nutrient neutrality. Again, this provision could potentially be made by the same landowner or perhaps even another nearby, especially where largescale developments may need to buy many units. The Planning and Infrastructure Bill is currently proposing significant changes as to how nutrient neutrality is to be achieved (but it is not proposing to change the way in which BNG is provided), so, in the future, a developer might need to make a payment into the Nature Restoration Fund. It is not yet clear how the requirements will be enacted.

Michelmores strategic land  and development teams are experienced in undertaking large scale development across a range of greenfield and brownfield sites for residential and commercial purposes. If you would like to discuss any of the points in this article in more detail, Mark Howard, Fergus Charlton, Helen Hutton, Adam Corbin or Ben Sharples.

In this episode, Ross Jarvis is joined by Emma Honey, Partner and Head of Real Estate, and Callum O’Doherty, an Associate in the Transactional Real Estate team. Together, they discuss the process of ‘exiting’ a completed development site and will identify some of the practical issues that can arise. Some practical solutions are also considered, so that the site exit process can be as smooth as possible.

In this episode, Ross Jarvis is joined by Elizabeth Newson and Rachel Tilley, both Partners in our Transactional Real Estate team. Together, they will be exploring site delivery issues including highway gaps, unregistered parcels of land, ransom strips and issues arising from technical due diligence, archaeology and even unexploded ordnance! You can listen to part one here.

In this episode, Ross Jarvis is joined by Chloe Howard-Smith and Rachel Tilley, both partners in our Transactional Real Estate team. Together, they will be exploring utilities in the context of site delivery. Whilst we could have created a whole podcast series on utility issues alone, this episode discusses some key issues around utilities discovered on site and new utility supplies to developments. You can listen to part two here.

In this episode, Ross Jarvis is joined by Charlotte Curtis from our Property Litigation team. Together, they will be exploring some of the common practical issues often revealed by a site visit and will discuss what options are available to developers in seeking to minimise disruption to the delivery of a scheme.

In our podcast, we discussed how the publication of the secondary legislation under the Environment Act 2021 has hopefully clarified a few issues relating to deal structuring and documentation.

The major issue remains getting the section 106 agreements completed as this requires the approval of the (often under resourced) local planning authority (LPA). We have moved from drafting on an anticipatory basis to being able to fill in some, if not all, of the blanks.

That is good news because the aim is to get to a position where we have standard documents for these BNG deals. That is not an easy goal to achieve as every LPA and every advisor has a different view on these things. However, if we can simplify and streamline the transactions then the market will work more efficiently.

The Biodiversity Gain Site Register Regulations 2024 (Register Regulations) have clarified issues around registration of sites. Most of that detail is procedural but Regulation 8 of the Register Regulations confirms that your Section 106 agreement/conservation covenant must specify the last date on which anyone will be obliged to carry out habitat enhancement works.

That means you do need to know how you’re going to manage your site and when you’re going to create the habitat because you need to then work out your 30 years from the completion of those habitat establishment works. As regards this end date the Register Regulations do caveat the requirement by stating “(if any)” when referring to the date. However, landowners are already carefully considering the implications of a 30 year commitment and it seems unlikely that they would sign up to a Section 106 agreement which does not have a finite termination date and which would therefore burden the land indefinitely.

The practical consequence of this requirement is that larger sites might be split so that, at least initially, only part is committed to habitat creation so that the establishment works are known and scheduled so the 30 year run off can be calculated. If those units are sold then more land on the site can be committed at a future date and a Section 106 agreement entered into accordingly.

The first phase of habitat establishment can be further split into allocations of units for separate developments but another reason for splitting the overall site as set out above is that the costs of habitat monitoring are already looking very high. As with legal or other professional costs, this market will only get going if the economics stack up. Monitoring habitat on a site with different commencement dates will add an unwelcome layer of complexity and cost.

The high monitoring costs are part of the price of the credit that the developer pays so it’s a key part of the sort of the economic equation. If it’s not assessed properly at the start and the developer is undercharged the landowner loses. If it’s too expensive and the credits are overpriced the developer goes elsewhere.

The list of responsible bodies has grown but not by much and that shortage is leading to an inertia in the uptake of conservation covenants. That seems a shame because they are tailor-made for this sort of project. They also have the advantage of removing the burden from the LPA of approving the drafting. Of course, the LPA will have to be happy with the conservation covenant but if it ticks the relevant boxes then approval should be straightforward.

What’s holding people back is the fear of the costs of having to enforce a breach of covenant against a defaulting landowner. That is what is worrying the trustees of wildlife trusts and commercial organizations alike.

Turning to nutrient neutrality, the mainstream creation of wetlands or cessation of agricultural use to produce phosphate and nitrate credits is well known but credits can be created by upgrading infrastructure such as replacing faulty septic tanks with decent package treatment plants. This could be an option for rural estates to upgrade infrastructure and derive a benefit at the same time.

The impact of the Levelling Up and Regeneration Act 2023 is considerable as that places an obligation on water companies to upgrade wastewater treatment works by 2030. The critical point here is that the calculations for working out the nutrient neutrality requirements on any particular project have to assume that those upgrades have taken place. This means that a developer will require far fewer phosphate and nitrate credits after 2030 than before because the upgrades are deemed to have taken place and those wastewater treatment plants are much more efficient at stopping the pollutants going into a river.

What that means is that there’s an interim market for short-term mitigation from now until 2030 because if you’re building houses now you might need, for example, 100 phosphate units for the period from now until 2030, but only 50 thereafter. As such, you might opt to purchase 50 long term credits for the post 2030 period and look for short term mitigation based credits in the interim. That short term solution is a far easier decision for a landowner to make when compared to a 80-125 year commitment.

After many months of passing through the Parliamentary legislative process the Product Security and Telecommunications Infrastructure Bill (“the Bill”) received royal assent on 6 December 2022 and is now called the Product Security and Telecommunications Act 2022 (“the Act”).

As reported in our earlier article “Telecoms: A better balanced Bill for site owners?“, the Lords sought to make some amendments to the Bill as it passed through Parliament to try to address some imbalances for site owners. One of the later amendments proposed by the Lords, but not covered in our earlier article, was an independent review of the Electronic Communications Code (“the Code”) to assess the extent to which the revisions to the Code in 2017 have secured progress towards telecommunications infrastructure targets and the balance of rights and responsibilities of landowners and operators. The Commons rejected this proposal.

Although the Bill has received royal assent the relevant sections of the Act dealing with telecommunications infrastructure (sections 57-75) have not yet come into force and we await regulations by the Secretary of State regarding commencement.

What this means for site owners

The key provisions of the Act for site owners are as follows:

1. The rights to upgrade and share apparatus will apply retrospectively to subsisting agreements and equipment installed before the 2017 Code.

The same provisions in the Code apply so that such sharing or upgrading must neither have an adverse impact on the land nor impose a burden on any person with an interest in the land. The operators must provide notice of their intention to share or upgrade and there is a caveat that this clause does not confer a right on the operator to enter onto land to upgrade or share the use of the equipment.

2. Amendments will be made to the Landlord and Tenant Act 1954 (“1954 Act”) to bring renewals of subsisting agreements within the Code’s valuation scheme.

This will mean that where previously site owners might have enjoyed higher rents under a renewal agreement governed by the 1954 Act, this is no longer the case as those renewals will fall under the Code’s valuation scheme. This applies to court/tribunal-imposed agreements and so there is still scope for site owners and Operators to negotiate higher rents. However, the likely outcome is that rents will fall further as there is no longer the threat of 1954 Act renewal proceedings to seek a higher rent for site owners.

3. A new procedure will apply under which operators can obtain Code rights more quickly over certain types of land where a site owner fails to respond to repeated requests for Code rights.

4. The operator will be under an obligation, if it is reasonably practicable to do so, to consider the use of alternative dispute resolution procedures to reach agreement before applying to court. Whilst this is not mandatory, the tribunal can penalise a party on costs where they have unreasonably refused to engage in alternative dispute resolution.

Conclusion

It remains to be seen when these provisions will come into effect and the scale of the impact they will have on site owners and rents but it is clear that the balance of power has shifted a little further in favour of the operators.

This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.

In this article we will look at what the options are in terms of off-site solutions. For an overview of the basics of Biodiversity Net Gain (BNG) please consult our earlier publications:

Biodiversity Net Gain: the basics | Michelmores

Biodiversity Net Gain : An update for developers | Michelmores

As stated in our article on the basics of BNG, there are three options (or a blended approach) to providing BNG as follows:

1. On-site provision.
2. Off-site provision.
3. Statutory credits.

In terms of off-site provision, a developer has the following options:

1. Secure off-site BNG itself.
2. Purchase non-statutory BNG units via “habitat banks”.
3. Purchase habitat units from the national biodiversity credits scheme – although note that this is seen as an option of last resort.
4. Proceed by way of a combination of the above options.

In considering the available options, developers must apply the mitigation hierarchy – see our publication for more information in this regard.

In this article we focus on off-site BNG and the purchase of non-statutory BNG units.

Securing off-site BNG

Off-site BNG gains must be secured through a planning obligation or conservation covenant. In practical terms, in order to secure off-site BNG, a developer would need to either buy further land to deliver BNG (greater value being attributable to nearby gains) or enter into an agreement with a landowner in respect of the delivery and management of the gain site. Off-site BNG will be secured for at least 30 years through a conservation covenant or a planning obligation. It may be possible for a developer to pass on long term legal responsibility for the management of the off-site habitat and reporting to the landowner. However, the involvement of any third party land outside the development site may cause delay and uncertainty in the transaction. The cost of providing and managing off-site BNG will need to be considered particularly whether that can be brought into account when determining the purchase price of a site pursuant to a conditional contract or option agreement.

It is thought that off-site delivery is the best outcome for nature as it can make a lasting change to biodiversity levels. This gives developers an opportunity to demonstrate that they are playing a crucial role to the recovery of the natural environment. There may be opportunity to work with a nature conservation organisation.

It is possible that, where a developer has the benefit of conditional contracts or options in respect of strategic sites which are not able to be successfully promoted for development, they could seek to use that land for the delivery of off-site BNG and developers may, therefore, wish to review their land banks with this in mind.

Purchasing non-statutory BNG units

The provision of offsite BNG and the use of “habitat banks” is a rapidly emerging market. DEFRA, as part of their consultation on BNG, has published a market analysis that uses a working assumption that 50% of BNG would be delivered off-site which creates an annual demand of 6,200 biodiversity units with an estimated value of £135,000,000. This indicates the size of the potential habitat banking market.

As habitat enhancement/creation eligibility is retroactive with habitat enhanced or created since 30 January 2020 being eligible for BNG agreements, landowners and habitat bank providers (and even local planning authorities) are able to start producing the BNG now ahead of the mandatory 10% net gain requirements coming into form in November 2023. There are providers who are already establishing a network of habitat banks with the aim of having BNG units available in all local planning authority areas. The acquisition of BNG units by a developer leaves the developer with no ongoing liability, the unit provider having arrangements in place with the relevant landowner for the creation and management of the habitat. In order to be able to sell BNG units, the relevant provider will need to have secured the habitat bank through conservation covenants or planning obligations and to have registered the habitat bank with the relevant local planning authority.

Please read these Terms and Conditions carefully before using this site

What’s in these terms?

These terms tell you the rules for using our website www.michelmores.com (our site).

Who we are and how to contact us

Michelmores LLP (“We”) own and operate the site www.michelmores.com. We are registered in England and Wales under partnership number OC326242 and have our registered office at Woodwater House, Pynes Hill, Exeter, Devon, United Kingdom, EX2 5WR. Our VAT number is 140 9928 55.

We are regulated by the Solicitors Regulation Authority (SRA authorisation number 463401).

We are a limited liability partnership.

A list of the members (all of whom are solicitors or barristers) is available for inspection at the registered office and at www.michelmores.com.

To contact us, please email enquiries@michelmores.com.

By using our site you accept these terms

By using our site, you confirm that you accept these terms of use and that you agree to comply with them.

If you do not agree to these terms, you must not use our site.

We recommend that you print a copy of these terms for future reference.

There are other terms that may apply to you

These terms of use refer to the following additional terms, which also apply to your use of our site:

• Our Privacy Policy. See further under How we may use your personal information.
• Our Cookie Policy, which sets out information about the cookies on our site.

If you instruct us to supply goods or services via our site, our Terms and conditions of supply will apply to such supply.

We may make changes to these terms

We amend these terms from time to time. Every time you wish to use our site, please check these terms to ensure you understand the terms that apply at that time.

We may make changes to our site

We may update and change our site from time to time to reflect changes to our offering, our users’ needs and our business priorities, or as required by any relevant regulation. We will try to give you reasonable notice of any major changes.

We may suspend or withdraw our site

Our site is made available free of charge.

We do not guarantee that our site, or any content on it, will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our site for business and operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.

You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these terms of use and other applicable terms and conditions, and that they comply with them.

We may transfer this agreement to someone else

We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.

You must keep your account details safe

If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party.

We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of the provisions of these terms of use.

If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at enquiries@michelmores.com.

How you may use material on our site

We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.

You may print off one copy, and may download extracts, of any page(s) from our site for your personal use and you may draw the attention of others within your organisation to content posted on our site.

You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.

Our status (and that of any identified contributors) as the authors of content on our site must always be acknowledged (except where the content is user-generated).

You must not use any part of the content on our site for commercial purposes without obtaining a licence to do so from us or our licensors.

If you print off, copy, download, share or repost any part of our site in breach of these terms of use, your right to use our site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

No text or data mining, or web scraping

You shall not conduct, facilitate, authorise or permit any text or data mining or web scraping in relation to our site or any services provided via, or in relation to, our site. This includes using (or permitting, authorising or attempting the use of):

• Any “robot”, “bot”, “spider”, “scraper” or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of the site or any data, content, information or services accessed via the same.
• Any automated analytical technique aimed at analysing text and data in digital form to generate information which includes but is not limited to patterns, trends and correlations.

The provisions in this clause should be treated as an express reservation of our rights in this regard, including for the purposes of Article 4(3) of Digital Copyright Directive ((EU) 2019/790).

This clause shall not apply insofar as (but only to the extent that) we are unable to exclude or limit text or data mining or web scraping activity by contract under the laws which are applicable to us.

Do not rely on information on this site

The content on our site is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on our site.

Although we make reasonable efforts to update the information on our site, we make no representations, warranties or guarantees, whether express or implied, that the content on our site is accurate, complete or up to date.

We are not responsible for websites we link to

Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only. Such links should not be interpreted as approval by us of those linked websites or information you may obtain from them.

We have no control over the contents of those sites or resources.

User-generated content is not approved by us

This website may include information and materials uploaded by other users of the site, including to social media pages, video-sharing sites, bulletin boards and chat rooms. This information and these materials have not been verified or approved by us. The views expressed by other users on our site do not represent our views or values.

How to provide feedback about our site or report content

If you have any feedback or concerns regarding any material which appears on our site please email enquiries@michelmores.com.

Our responsibility for loss or damage suffered by you

Whether you are a consumer or a business user:

• We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.
• Different limitations and exclusions of liability will apply to liability arising as a result of the supply of any products to you, which will be set out in our Terms and conditions of supply.

If you are a business user:

• We exclude all implied conditions, warranties, representations or other terms that may apply to our site or any content on it.
• We will not be liable to you for any loss or damage, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:
  • use of, or inability to use, our site; or
  • use of or reliance on any content displayed on our site.
• In particular, we will not be liable for:
  • loss of profits, sales, business, or revenue;
  • business interruption;
  • loss of anticipated savings;
  • loss of business opportunity, goodwill or reputation; or
  • any indirect or consequential loss or damage.

If you are a consumer user:

• Please note that we only provide our site for domestic and private use. You agree not to use our site for any commercial or business purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
• If defective digital content that we have supplied, damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill, we will either repair the damage or pay you compensation.

How we may use your personal information

We will only use your personal information as set out in our Privacy Policy.

Uploading content to our site

Whenever you make use of any feature that allows you to upload content to our site, or to make contact with other users of our site, you must comply with such contents standards as we may specify from time to time.

You warrant that any such contribution will comply with any such standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty.

Any content you upload to our site will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you are required to grant us and other users of our site a limited licence to use, store and copy that content and to distribute and make it available to third parties. The rights you license to us are described in Rights you are giving us to use material you upload.

We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our site constitutes a violation of their intellectual property rights or of their right to privacy.

Rights you are giving us to use material you upload

When you upload or post content to our site, you grant us the following rights to use that content:

• a worldwide, non-exclusive, royalty-free, transferable licence to use, reproduce, distribute, prepare derivative works of, display, and perform that user-generated content in connection with the service provided by the website and across different media including to promote the site or the service to expire when the user deletes the content from the site;
• a worldwide, non-exclusive, royalty-free, transferable licence for other users, partners or advertisers to use the content in accordance with the functionality of the site to expire when the user deletes the content from the site.

We are not responsible for viruses and you must not introduce them

We do not guarantee that our site will be secure or free from bugs or viruses.

You are responsible for configuring your information technology, computer programmes and platform to access our site. You should use your own virus protection software.

You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material that is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.

Rules about linking to our site

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it.

You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

You must not establish a link to our site in any website that is not owned by you.

Our site must not be framed on any other site, nor may you create a link to any part of our site other than the home page.

We reserve the right to withdraw linking permission without notice.

If you wish to link to or make any use of content on our site other than that set out above, please contact enquiries@michelmores.com .

Which country’s laws apply to any disputes?

If you are a consumer, please note that these terms of use, their subject matter and their formation, are governed by English law. You and we both agree that the courts of England and Wales will have exclusive jurisdiction except that if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.

If you are a business, these terms of use, their subject matter and their formation (and any non-contractual disputes or claims) are governed by English law. We both agree to the exclusive jurisdiction of the courts of England and Wales.

Rights in respect of our trade marks

All rights in relation to the “MICHELMORES” name and our stylised marks are owned by Michelmores LLP. You are not permitted to use them without our approval, unless they are part of material you are using as permitted under How you may use material on our site.

Dated: March 2023

As reported in our earlier article “Telecoms: another top of the scales in favour of operators”, the Product Security and Telecommunications Infrastructure Bill is currently going through Parliament. The Bill has been through the House of Commons, has undergone its second reading and Committee stage in the House of Lords and is now awaiting Report Stage, likely to take place in September.

There are two particular areas of amendment being debated, which are likely to be of interest to landowners. We focus on these and also address some of the imbalances proposed by the Bill, whilst remaining mindful of the need for a quick and efficient roll-out of infrastructure.

Mandatory alternative dispute resolution

The initial draft of the Bill only made it optional for operators to consider using Alternative Dispute Resolution (“ADR”) before making an application to court. The Lords are now considering an amendment to make it mandatory for operators to engage in ADR before threatening to take a landowner to the tribunal for an agreement to be imposed.

This amendment is being tabled to try to address the imbalance between the apparently limitless resources of operators for dealing with disagreements in the tribunal, and landowners, who often do not have the means to resist such claims. The intention is to try to move away from the attritional conflict currently dominating the tribunal, especially now that case law has developed around the Electronic Communications Code (“the Code“), which could make ADR a feasible option.

Renewals – 1954 Act and the Electronic Communications Code

Although in its 2021 consultation the Government stated it did not intend to revisit the statutory valuation framework introduced by the Code, the provisions introduced by clause 61 of the Bill seem to do just that. This clause amends the basis for rent assessment of Code sites, on the renewal of a subsisting agreement under the Landlord and Tenant Act 1954 (“1954 Act“), to import directly the Code’s valuation provisions. This will mean that existing long-standing leases, which were freely negotiated between willing participants, will likely see demands for dramatically reduced rental values. The Government’s argument for this is consistency in valuation across the ways in which Code Rights can be granted; whether by a renewal under the 1954 Act or by way of a new Code agreement.

As predicted by the Law Commission when the Government was looking to implement the Code, the dramatic fall in rents offered to landowners has resulted in a corresponding reduction in the number of new agreements reached between landowners and operators and has therefore not sped up the roll-out of digital infrastructure as intended.

If this were to apply to 1954 Act renewals, as well as to new agreements, it will neither encourage harmonious relationships between landowners and operators, nor will it help the intended roll-out. As a result, it has been argued in the House of Lords that renewal agreements under the 1954 Act should not be brought under the Code but should remain under the 1954 Act, to preserve existing property rights and to try to reintroduce the collaborative relationships, which were undermined by the 2017 Code amendments. An alternative amendment proposes that, if renewals are to be brought under the Code valuation system, there should be a limit in the reduction of rent sought.

Conclusion

Although the Bill still has some way to go before becoming law, these proposed amendments, which had cross-party backing in the Lords, should give landowners some comfort that a balance is being sought between their property rights and the ongoing need for a quick and efficient roll-out of digital connectivity across the country.

For more information, please contact Dani West or Helen Hutton.

When could an Indemnity Agreement be used?

Limitations to an Indemnity Agreement

• the consequences of acquiring an interest in contaminated land
• due diligence (including searches and inquiries)
• consider commissioning an independent report from environmental consultants
• consider commissioning an independent valuation
• obtain advice on contractual protection, including exclusion and indemnity clauses and apportionments, warranties, or consider making the contract conditional upon the seller complying with any remediation notices.