On 17 May, the National Audit Office (NAO) published a report examining the progress Defra and Natural England have made on the implementation of biodiversity net gain (BNG) in response to a request from the Environmental Audit Committee.

The report looks backwards assessing the implementation of BNG and its contributions to the biodiversity objectives and considers risks to the long-term effectiveness of BNG policy. The NAO makes recommendations to support Defra and Natural England to maximise value and manage risks to the implementation of BNG policy as it becomes business as usual.

Developers in England are now required to provide BNG of at least 10%, with the exception of large infrastructure projects which will be subject to the BNG regime from November 2025.

Risks to delivery of the long-term BNG benefits

The overall thrust of the NAO report is that there is still work to be done, against the backdrop of a shortfall in resources.

The NAO report raises some significant risks that the government will need to manage to achieve its biodiversity objectives.

The NAO flag that Defra is relying on a market for BNG units emerging, which remains uncertain. Defra does not intend on monitoring or influencing this market, which the NAO warns is a significant risk. For our part we consider this snapshot in time is not reflective of the emerging market. The BNG register records five BNG sites already and in our experience many landowners are seeking opportunities to realise the natural capital potential of their land for BNG purposes.

The report also raises the concern that demand for certain habitat types may not be served properly, harming the overall biodiversity objective. There is likely to be some geographic variation in the offsite market which may disadvantage some LPAs seeking to raise income from legal agreements.

Local authorities are responsible for operating the planning system locally through which the government has implemented statutory BNG. A key concern to the overall biodiversity objective is the capacity and capability of Local Planning Authority’s (LPAs) and their lack of resources to monitor and enforce statutory BNG. The report states that sufficient and timely funding is needed for LPAs who have not yet received any additional money. Compounding this resourcing crisis ecologists, who are central to the successful implementation of the objectives, are in short supply at a time when there is unprecedented demand for their expertise.

The BNG regime makes government the BNG provider of last resort, with developers purchasing statutory biodiversity credits. In this respect the report identifies another hurdle for Defra being that there is no mechanism to spend income raised from statutory credit sales that is legal and consistent with HM Treasury rules on managing public money.

The NAO suggests that Defra needs to actively monitor the effectiveness of LPAs and responsible bodies in applying BNG policy. While LPAs can source information on offsite gains and ‘significant’ onsite gains which require registration on the NE statutory register, there is no comprehensive source of information in respect of onsite gains.

A major challenge for Defra is monitoring regional engagement with BNG policy, as some LPAs may be more effective than others in compliance and enforcement. Where some LPAs are struggling, NAO recommends that Defra targets support to them.

The monitoring is essential to charting the success of the government’s biodiversity objective. Defra and Natural England are encouraged to obtain more accurate data to review the policy’s impact and application over time.

Recommendations

NAO sets out various recommendations aimed at supporting Defra and Natural England to maximise value and manage risks to statutory BNG, including the following:

• Implementing a legal mechanism for Defra to spend income from the proceeds of statutory credits sales;
• Making arrangements for understanding and addressing risks to the long-term success of BNG;
• Providing funding certainty for LPAs;
• Determining how it will monitor the effectiveness of compliance by LPAs and responsible bodies;
• Monitoring the emerging biodiversity market to ensure it meets demand; and
• Publishing information annually on what statutory BNG has delivered so far toward national biodiversity targets.

The NAO report highlights that there is some further work needed by Defra to ensure BNG meets its policy objectives. However, given this is the first time any government worldwide has introduced BNG as a national legal requirement, this is perhaps unsurprising.

At Michelmores, we can provide expert assistance to clients navigating the complex and novel landscape of BNG.

Michelmores is pleased to have been named as a finalist for the Enterprise Investment Scheme Association (EISA) Awards 2024 for the second year running.

The EISA Awards are a prestigious event held at the House of Lords in Westminster, London. Each year, the Awards celebrate the outstanding achievements of participants in the EIS and SEIS field.

EISA recognises the founders, investors and advisers who are driven by the common goal of supporting entrepreneurs across the UK to drive innovation and economic growth.

Michelmores has been recognised as a finalist with regard to regularly having advised on the EIS and SEIS schemes and associated tax reliefs for a wide range of clients including funds, individual investors and investee companies.

Michelmores has also presented at the EISA’s Ready, Steady Grow! event in Bristol in September 2023 and the British Business Bank regional seminar in Exeter in November 2023. The Firm has contributed to the ongoing success of these investment schemes and promoted their wider visibility, particularly for female founders, through our investor and start-up networks.

Anthony Reeves, a Senior Associate in the Firm’s Corporate team, comments:

“We are delighted to be nominated for this EISA award for the second year in succession. The EIS and SEIS investment schemes offer fantastic advantages for eligible companies as well as generous tax reliefs for individual investors (and the Association works tirelessly to spread this message). We are very pleased to play a part in helping our clients to make use of these underused schemes in order to facilitate growth in the UK.”

For more information, visit the EISA website.

Michelmores is delighted to have been recognised as Law Firm of the Year – UK at the 2024 CityWealth Magic Circle Awards.

The CityWealth Magic Circle Awards, which have been running for nearly two decades, are a key feature in the private wealth sector calendar, celebrating the leading advisers and firms.

Tim Richards, Michelmores’ Managing Partner, comments on the win:

“I couldn’t be prouder of the Michelmores team for taking home the Law Firm of the Year accolade at this year’s CityWealth Magic Circle Awards.”

“Our Private Wealth group are long standing, trusted advisors to numerous high net worth  individuals and families in the UK and internationally, and work tirelessly to provide creative solutions for our clients and their nuanced requirements.

“It is fantastic to see the exceptional experience and exemplary client service that the team provide, recognised by our industry peers at such a prestigious event.”

Iwan Williams, Partner in the Firm’s Tax, Trusts & Succession team, also took home the accolade for Lawyer of the Year.

Commenting on the win, Iwan said:

“I am absolutely delighted, astonished, and humbled to have won Lawyer of the Year. It was such a lovely surprise and deserving recognition for the entire team after a year of outstanding growth and success throughout the Private Wealth group at Michelmores”. 

Karen Jones, Founder, CEO and Editor of CityWealth, commented on the awards:

“With multiple elections, growing global aggression and civil protests, the wealth manager and adviser in all capacities are being called on for advice. In two decades we have not seen such critical issues up for debate. Now, more than ever, UHNW clients need to rely on the safety the industry provides to protect assets and knowledge to navigate family issues whether divorce, ESG investing, tax or succession.

“With that, CityWealth is delighted to present the best of breed for 2024. Congratulations to all the shortlisted individuals and organisations – they are absorbing the impact of world changes and digesting them in a manageable format for their clients.”

The Awards ceremony was held on Wednesday 15 May 2024 in London and attended by over professionals from over 140 organisations, including law firms, trust companies, family offices, tax advisers and investment managers. Following a submission process, nominations were judged by a panel of highly respected wealth managers and advisers.

For more information about the awards visit CityWealth’s website.

The Olympics – every brand’s dream marketing opportunity.

With the world’s most popular sporting event just around the corner – capable of gripping over 3 billion people worldwide – it is no surprise that businesses big and small want a piece of the action.

The sales slogans practically write themselves; with artwork recognised globally, you could save yourself a fortune in promotional spend by associating yourselves with the Games.

However, before you showcase your business’s unwavering support for the Games by hanging up the Olympic rings in your shop window or plastering your favourite athlete on your social media page, you need to be aware of the legal implications that come with free-riding on the world’s biggest sporting spectacular.

Protection for the Olympic symbols

The IOC owns the exclusive rights to the Olympic symbol, flag, and a variety of other recognisable works associated with the Olympic and Paralympic Games, collectively called “Olympic properties”. These can be found in the Olympic Charter Guidelines¹.

There are 206 National Olympic Committees (NOC) which work under the IOC and alongside International Sport Federations to “develop, promote and protect the Olympic Movement in their respective countries, in accordance with the Olympic Charter.”²

Each NOC must monitor the misuse of the Olympic properties that go against the IOC’s Rules and Byelaws and ensure compliance with any national legal protections and/or instruments to prosecute and/or bring civil claims against individuals depending on the severity of the breach.

Each country that bids to host the Games must enforce the Guidelines by creating or modifying existing laws in their country to facilitate the protection of the values of the Olympic Movement. This means that an Olympic Symbol on display in your shop window without permission from the IOC could lead to a lawsuit.

Ahead of the 2024 Summer Games in Paris, the French passed a new law (Law No. 2018-202 of 26 March 2018) to facilitate the management of the Olympic and Paralympic Games, many provisions of which have been modified from active laws including the provisions regarding advertising (governed by the environmental code) and the use of Olympic properties which are protected under French intellectual property laws.

UK Protection

In the UK the British Olympic Association (BOA) is responsible for ensuring compliance with the Olympic Guidelines. The introduction of the Olympic Symbol etc (Protection) Act 1995 incorporated the Rules set out by the IOC and what amounts to infringement.

Section 3 of the Act provides that a person can infringe the Olympics association rights by using a “representation of the Olympic symbol, the Olympic motto or a protected word” or using something similar that is “likely to create in the public mind an association with it” which is then used in the following ways:

1. By affixing it to goods or the packaging,
2. Incorporating it in a flag or banner,
3. offers or exposes for sale, puts on the market or stocks for those purposes goods which bear it or whose packaging bears it,
4. importing or exporting goods which bear it or whose packaging bears it,
5. offers or supplies services under a sign which consists of or contains it, or
6. uses it on business papers or in advertising (Section 3(2)).

The aim of each NOC’s legislation is to counter “ambush marketing”; a term used to describe advertisers who ‘gate-crash’ an event by using its exposure to promote their brand. The Olympics has had its fair share of ambush marketing which has caused commercial repercussions concerning lucrative sponsorship contracts.

Using without permission

The IOC produce guidance material to highlight the key principles for non-Olympic partners who sponsor an athlete but not the Games and want to advertise during the Olympic period. ³

Non- Olympic sponsors must only use an athlete’s image without any connection to the Games and the advertising must have been running for at least 90 days prior the Games period, running consistently and not ‘materially escalated’.

The key Dos and Don’ts have been summarised below:

If you have no connection with the Games or an athlete, the best advice is to steer clear of any temptation to piggy-back Paris this summer.

Conclusion:

The Paris organising committee will monitor use of the Olympic symbols globally. They will only take immediate action in the most serious of cases BUT they will pursue everyone after the games for damages. So, play by the rules and enjoy the games.

Michelmores is pleased to have advised reupholstery and furniture repair business Upholstery2u on a £1.125 Million investment by Middleton Enterprises.

Upholstery2u offers on-site services, in-house repairs and maintenance contracts. The award-winning business, founded in 2021 by Daniel and Michael Boyle, prides itself on delivering a personalised, human service that prioritises the needs of its clients and thriving in multiple industries, catering to the diverse needs of businesses nationwide.

Family investment firm Middleton Enterprises is a team of nine professionals, backing fast-growing businesses and managing the interests of the Middleton Family. The firm provides opportunities for future generations and helps to create growing businesses that build wealth and employment.

The investment in Upholstery2u by Middleton Enterprises will enable the former to consolidate its position in the market and expand internationally.

The Michelmores team advising on the investment was led by Partner Adam Kean, along with Associate Ben Adams, both from the Firm’s Corporate team.

Michael Boyle, Managing Director and joint CEO of Upholstery2u, comments on the deal:

“This investment will enable us to launch our innovative product to global markets and offer us the flexibility our business needs as it grows. We believe that Upholstery2u has the potential to revolutionise upholstery repairs, bringing the workshop to a customer’s doorstep and we are excited to see where our product will go with the support of Middleton Enterprises.

“It’s been a pleasure working with Adam and the Michelmores team – we’re grateful for their excellent advice throughout the whole process. The Firm really understands what we need and how we like to work, and they adeptly guided us through the investment process complexity with ease.”

Adam Kean adds:

“Middleton Enterprises invests in cutting-edge companies that are set to revolutionise and innovate their markets – Upholstery2u is a prime example of that. We are pleased to have advised Daniel, Michael and their talented team on this exciting new phase of business and look forward to seeing Upholstery2u go from strength to strength with this latest investment round supporting its ambitious expansion plans.”

Michelmores’ award-winning Corporate team of 25 specialist lawyers advises clients across the UK, US, EMEA and beyond – on capital markets, mergers and acquisitions, management buyouts, impact investing, energy projects, microfinance initiatives and more. Read more about our Corporate team services here.

Michelmores is pleased to announce that this year’s round of promotions brings the Firm’s proportion of female Partners to 49 per cent, moving the firm closer to gender parity within its partnership.

Charlotte Bolton has been promoted to Partner in the Commercial & Regulatory Disputes team. Charlotte joined Michelmores as a trainee in 2012 and specialises in intellectual property disputes. She advises on issues relating to trade marks, patents, copyright, designs and confidential information.

Nerys Thomas has been promoted to a Partner in the Tax, Trusts & Succession team. Nerys joined the Firm in March 2022 and advises individuals, families and business owners on a wide range of matters including wills, powers of attorney, tax planning, trusts and estate administration.

The Firm’s newly promoted Senior Associates bring the total number of female Senior Associates to 74 per cent.

This year’s newly promoted Senior Associates include:

• Lisa Benham in the Disputed Wills & Estates team
• Laura Bond in the Family team
• Abigail Brown in the Commercial & Regulatory Disputes team
• Philippa Collison in the Commercial team
• Katharine Everett Nunns in the Agriculture team
• Yvonne Farrell in the Projects & Infrastructure team
• Harriet Grimes in the Real Estate team
• Kate Higgins in the Private Property & Landed Estates team
• Victoria Miller in the Corporate team
• Seema Nanua in the Agriculture team.

Becky Hunt, an Associate in the Firm’s Governance and Risk team, has also been promoted to the role of Senior Legal Counsel.

Commenting on the promotions, Tim Richards, Michelmores’ Managing Partner, says:

“I am very proud to announce our new Partners and Senior Associates and congratulate them all on achieving this significant milestone in their career. Each colleague has demonstrated their ongoing commitment to the Firm, as well as our ambition and values. I look forward to seeing the impact that their drive and energy has at Michelmores.

“This year we have made another positive step forward towards reaching gender parity within the Partnership, yet there is still work to be done. We remain committed to fostering an inclusive culture and one of the ways we can achieve this, is to continue to improve the gender balance across our Firm.”

Read more on our website.

On 9 April 2024 the European Court of Human Rights (ECHR) delivered a landmark ruling on the obligations of its 46 signatory states to mitigate the impacts of climate change. Verein KlimaSeniorinnen Schweiz[1] and Others v Switzerland (53600/20) marks the first time that government inaction in relation to the climate crisis has infringed basic human rights, and paves the way for future legal challenges against signatory states who fail to protect their citizens from the adverse impacts of climate change.

Background

The case was brought by members of a non-profit association (KlimaSeniorinnen) established to promote effective climate protection for women in Switzerland. The claim sought judgment against Switzerland for failing to protect its citizens from the impacts of global warming. In particular, with members predominantly aged over 70, KlimaSeniorinnen highlighted the increased risks of global warming to the health and quality of life for women and the elderly, and the detriment being suffered as a result of inaction by the Swiss government and authorities.

Human Rights and Climate Change

KlimaSeniorinnen argued that the Swiss government’s failings breached several provisions of the European Convention of Human Rights (the Convention):

• Article 2: the right to life
• Article 8: the right to respect for an individuals’ private and family life and their home
• Article 6: the right to a fair trial

Specifically, it was alleged that the Swiss government failed to implement the necessary regulatory framework to protect the health of its citizens. The claim highlighted excess illness and deaths among the elderly, and in particular women, who suffer the greatest harm from heatwaves. KlimaSeniorinnen asserted association members had been unable to carry on their daily lives during summer heatwaves, and that this infringed Article 8 which includes the right for personal autonomy and the right to age with dignity.

The Swiss government argued that climate change is a global phenomenon caused collectively by all nations. Given Switzerland’s comparatively low greenhouse gas emissions, the government argued that the applicants could not demonstrate that the suffering alleged was being caused by Swiss emissions.

The Climate Change Obligations of Governments

The Court’s assessment primarily focused on rights protected by Article 8. It held that the adverse effects of climate change can amount to an interference with an individual’s enjoyment of his or her private or family life or home. This watershed assessment extends the rights of citizens to protection by their state from the serious adverse effects and risks of climate change on their health, well-being and quality of life.

The Court outlined that, in the context of climate change, a government’s primary obligation to protect the rights of its citizens is to adopt regulations and measures capable of mitigating its existing and future impacts. In assessing the extent of a governments’ conformity with this obligation, the Court set out that close scrutiny will be paid to:

• The adoption of general measures specifying a target timeline for achieving carbon neutrality (or an equivalent method of quantifying greenhouse gas reductions)
• The implementation of intermediate targets to ensure that overall goals are adhered to
• Keeping the relevant targets updated, through due diligence and reference to the best available evidence
• Providing evidence to demonstrate compliance with emission reduction targets
• Acting in “good time” and in an “appropriate and consistent” manner when devising and implementing the relevant legislation and measures

The Court also noted that further, supplemental measures would be required to protect individuals from the most severe and imminent consequences of climate change.

The Judgment against The Swiss Government

Assessing Switzerland’s record in adhering to these obligations, the Court ruled that the government’s actions on tackling climate change constituted a breach of Article 8. Central to this infringement was the government’s failure to (1) adhere to its 2020 targets set to cut carbon emissions; (2) enshrine in law new emissions targets designed to keep global warming below 1.5^oC; and (3) act in good time to draw up and implement a strategy for reducing emissions, including a failure to quantify national emissions limitations.

The Court noted that the introduction of new legislation was insufficient to remedy the shortcomings of Swiss inaction to date and highlighted the need for immediate action to prevent overburdening future generations.

The Court separately found that the Swiss Government had infringed its citizens’ rights to a fair trial afforded by Article 6, because the Swiss administrative authorities and domestic courts at two levels of jurisdiction had rejected KlimaSeniorinnen’s claim without assessing its merits. This restriction of access to judicial consideration was concluded to have impaired the right to a fair trial.

Key Takeaways for the UK

The Convention is an international treaty (distinct from the European Union) incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA requires all UK law to be interpreted, as far as possible, in a way that is consistent with the Convention and to take into account the ECHR’s case law. Therefore, the principles laid down by the ECHR in KlimaSeniorinnen will be of interest to any party wishing to hold the UK Government’s climate policy to account.

In summary, the ECHR decided that government action to mitigate climate change and protect citizens from its adverse consequences should be assessed with reference to these key points:

• An arguable claim under Article 8 will require a specific negative effect on an individual’s private or family sphere. It will be insufficient if the detriment suffered is negligible in comparison with the environmental hazards inherent in modern city life.
• It is insufficient for governments to legislate the timeframes for achieving carbon reductions without taking requisite immediate and interim actions. Courts will scrutinise governments’ implementation of administrative, regulatory and legislative frameworks and will assess how these measures contribute to overall targets to reduce emissions. Failure to implement measures in “good time” will constitute an infringement on citizens’ human rights.
• Governments should legislate for both overall emissions targets and intermediate targets that assess progress. Targets will need to be updated with reference to the best available evidence.
• States must ensure that citizens are provided access to courts at national level to hear complaints relating to climate change. Failure of national courts to assess the merits of complaints will constitute a breach of Article 6.

Those in the UK seeking to challenge the decisions of the Government and public bodies in relation to climate change can do so under the HRA by way of judicial review. Our courts have authority to disregard secondary legislation (such as statutory instruments created by ministers or government departments) that is incompatible with the Convention and, most commonly, send the matter back to the relevant authority to reconsider.  Alternatively, our courts can issue a declaration of incompatibility between the UK’s primary legislation (statutes passed by parliament) and the Convention – prompting parliament to change the law or, if not, prompting the claimant(s) to refer the UK to the ECHR.  A decision of the ECHR is binding on the UK and it is obliged to remedy any violations of the Convention, by amending its legislation and/or paying compensation to victims who have sustained damage.

For further information and advice about issues relating to the above, please do get in touch with Jonathan Kitchin or Alex Southall.

[1] Senior Women for Climate Protection in Switzerland.

When applying for graduate roles, it is important to apply to firms that will be a good fit for you. One way of getting an insight into a firm and what it would be like to work there is through attending open day events. Attendance at these events will usually reveal much more about the firm than online research. This article provides tips to help you make the most out of the open day events that we hold at Michelmores.

1. Be engaged

During an open day event, attendees hear from a range of speakers about the firm and their role within it. You should bring a note pad and a pen to the event so that you can make a note of:

a) any questions which you cannot ask immediately;

b) names of individuals you hear from throughout the event, particularly those who you would like to follow up with after the event; and

c) things you learn about the firm which will be useful to remember when writing your application.

2. ‘Put yourself out there’

Open day events often finish with a networking session during which attendees get the opportunity to chat to employees of the firm. Whilst it can be daunting to speak to new people, it is important to push yourself outside of your comfort zone and take the initiative to approach members of the firm. Try to avoid the temptation to stay standing with a group of your friends. Instead, split off into pairs and consider approaching:

a) a lawyer working in a practice area that interests you;

b) a member of the graduate recruitment team for any questions you may have about the recruitment process and/or the structure of a training contract/graduate scheme; or

c) a trainee/graduate about their experience of the recruitment process or of the role itself.

3. Prepare questions/conversation starters in advance

It can feel awkward when approaching someone new to start a conversation. To avoid feeling uncomfortable, consider preparing a question for each of the following types of people that you are likely to meet at an open day event:

a) a Partner or Senior Associate;

b) a Trainee/Junior Solicitor; and

c) a member of the graduate recruitment team.

Preparing a question in advance will encourage you to approach a member of the firm by giving you a topic that you can use to start a conversation.

4. Post-event action

Take some form of follow up action after the event. This could be as simple as connecting on LinkedIn with someone at the firm who you spoke with and thanking them for their time. Alternatively, it could be referring to something you learnt about the firm at the open event when writing your application.

Follow our page on LinkedIn or visit our website for updates about upcoming events.

Michelmores is pleased to announce that it has advised the UK’s largest independent processing dairy, Freshways, on the acquisition of the business and assets of Liverpool based Coulton’s Bread Ltd a prominent bread wholesaler from its administrators.

Since its beginnings in 1990 as a small wholesaler, Freshways has grown into one of the largest independent and family-run dairy suppliers in the UK. This acquisition follows the recent acquisition of Milk & More, one of the market leaders for home grocery deliveries.

With this acquisition, Freshways Group is poised to sell in excess of 50 million loaves per annum. This strategic move not only expands Freshways’ market presence but also safeguards 110 jobs and supports local businesses, contributing to industry stability. The integration of the Coulton’s Bread business will enhance operational efficiency and distribution capabilities, further strengthening Freshways’ position as a reliable bread wholesaler.

This acquisition aligns with Freshways’ growth strategy and commitment to job preservation while remaining dedicated to sustainability and excellence in the dairy and bakery sectors and by swift execution, has saved a significant regional business in the sector.

The Michelmores team advising on the deal was led by Partner from the Firm’s Restructuring and Insolvency Team, Sacha Pickering, alongside Partners Alex Watson, Benn Richards, Robert Forsyth, Adam Corbin, and Paul Beanlands.

Adam Corbin, Freshways Client Partner comments:

“We really enjoy assisting Freshways with these exciting, fast paced, transactions, and are well placed to provide a reactive service where our teams can use their knowledge and understanding of Freshways’ business, and this sector as a whole to deliver good client service, and strong technical work”.

Freshways Director, Bali Nijjar said:

“We committed to this transaction with a very short timescale, safe in the knowledge that Adam, Sacha, Alex, and the Michelmores Team would make sure we achieved our objectives. Having a Team of lawyers who know us and know our business makes a real difference in transactions like this, and Michelmores have really invested in our relationship to ensure they deliver that.”

Michelmores’ consumer and commercial specialists help UK and international brands to break into new markets, connect with customers and close deals. From food and drink to luxury goods, brands with big ambitions and sustainable visions trust our extensive legal expertise. Read more on our website.

On 1 March 2024, M&S won an important legal victory in their bid to redevelop their flagship Marble Arch Store, an Art Deco building on London’s Oxford Street.

The High Court has quashed the Secretary of State’s (“SoS”) controversial refusal of the M&S redevelopment.

Mrs Justice Lieven asserted that the SoS Michael Gove misinterpreted the National Planning Policy Framework (NPPF), effectively rewriting the policy to include a “strong presumption in favour of repurposing buildings” where no such presumption exists.

Background

In 2021 M&S applied to demolish and upgrade its flagship store. M&S’s proposals were supported by the local council, the Mayor and an Independent Inspector.

In June 2022, the application received a number of objections, notably from Save Britain’s Heritage. As a result, the SoS called in the application for his own determination under section 77 of the Town and Country Planning Act 1990. In July 2023, the SoS refused to grant permission for the redevelopment, arguing it would “fail to support the transition to a low carbon future and would overall fail to encourage the reuse of existing resources including the conversion of existing buildings”.

The decision underlined the need for the property sector to consider carbon emissions and publicised the concept of embodied carbon (meaning the Co2 emitted from the production of construction materials) and its impact on planning decisions.

In late August 2023, M&S announced it would be challenging the validity of the SoS’s decision by statutory review.

M&S brought forward 6 grounds of challenge to the SoS’s refusal and successfully appealed to Judge Lieven to quash the decision on 5 of those grounds, set out below.

1. Lieven asserted the SoS misinterpreted paragraph 152 of the NPPF when he said there is a “strong presumption in favour of repurposing buildings”. The judge claimed that the SoS had effectively rewritten the policy. She added that, while paragraph 152 contains some encouragement for the reuse of buildings, it does not contain anything that comes close to a presumption. In her conclusion, Judge Leiven commented the importance of noting “that where the NPPF wishes to create a presumption, or suggest or direct refusal if certain conditions are not met, this is made clear on the face of the NPPF”.
2. The SoS failed to provide sufficient reasons for disagreeing with the Inspector on whether there were viable and deliverable alternatives to the scheme. The Inspector concluded in her inspection report that the structural issues and layout of the site would deter any meaningful refurbishment. The Court felt that in his decision letter the SoS did not “grapple with this issue” and held that that he could not simply assert his disagreement with the Inspector but needed to provide sufficient reasons for doing so. The Court concluded that in the absence of this information, it is impossible for the Court to determine the rationality or lawfulness of the SoS’s decision.
3. The Court held that the SoS failed to grapple with implications of refusal and loss of public benefit by refusing the application against the heritage impacts. The Inspection Report raised the possibility that without significant intervention to the property the store may be used by multiple trades including “American candy and luggage type stores.” The Inspector highlighted the potential conflict this would create with the aspirations of the Development Plan and the “wider vision for the retail heart of London”. The Court concluded that a reader of the report would be “left in a position of understanding that the loss of the benefits would be highly material”. In her judgment, Lieven found it difficult to understand the SoS’s reasoning for giving this consideration so little weight in the decision process and therefore found in favour of M&S on this ground.
4. The SoS simply stated that, in refusing the application, the harm to the vitality and commercial viability of Oxford Street, “would be limited”. He did not explain why he reached this conclusion. The Court regarded this issue as one of the most important considerations in the application. The Court stated that “it is obvious to any informed reader of the Inspection Report that significant harm to the vitality and viability at the western end of Oxford Street will have implications across the centre because of the loss of investment across the designated town centre”. Further, the SoS did not provide any reasoning to contradict the Inspector’s findings of significant harm, which the Court felt was necessary to justify his assertions.
5. Finally, Lieven found that the SoS misapplied the London Plan, referring to their interpretation as “transparently wrong”. She claimed that the net zero-carbon reference within the policy is concerned with operational carbon impacts, and not construction carbon impacts. Lieven arrived at this conclusion as the words “net zero” were defined in the policy documents, limiting the scope of interpretation. Her comments were that “any other interpretation of the policy would be both nonsensical, and contrary to the obvious words.” The SoS incorrectly understood that the requirement for carbon offsetting applied to embodied carbon and not just operational carbon. The judge inferred that had the SoS correctly understood the policy he might have come to a different conclusion.

In summary, the High Court decision may prompt relief among developers looking to redevelop rather than retrofit. Nonetheless, the judgment highlights the need for clearer guidance and national policy on reusing, rather than demolishing, buildings.

To discuss any of the issues raised in this article, or similar Specialist Real Estate issues, please contact someone from our Real Estate team.

Michelmores is pleased to have hosted a consultation in relation to the proposed devolution to establish a Devon and Torbay Combined County Authority.

The proposed Devon and Torbay devolution deal was announced by the Secretary of State for Levelling Up, Homes and Communities on 25 January 2024. The devolution will involve the transfer of powers and funding from central to local government.

The event, hosted by Michelmores at the Firm’s headquarters in Exeter in early March, was attended by over 20 key stakeholders in ‘housing’, one of the major areas for consideration. The stakeholders were drawn from key figures from the public sector and local authorities, private sector developers and major landowners.

Combined County Authorities (CCAs) are a new model of devolution, outlined in the Levelling-up and Regeneration Act 2023. Establishing a CCA is a formal, legal step, allowing upper tier councils across the region to work more closely together in a more structured way. A CCA for Devon and Torbay would be a new statutory authority created to lead collaboration between councils and would act as the recipient of powers and funding from Government.

The consultation was held in the Firm’s boardroom and allowed the invitees to openly discuss the pros and cons in a neutral environment. The event was co-chaired by Charles Courtenay, Earl of Devon and Partner in Michelmores’ Commercial & Regulatory Disputes team, and Mark Howard, Head of Michelmores’ Planning team.

For more information on the Firm’s sector specialisms, visit our website.

The highly-regarded Michelmores Property Awards are returning in 2024, marking 21 years of celebrating the South West’s best property, development and construction projects.

The shortlisted projects have now been announced for the Awards – a high-profile, sell-out event with around 450 individuals in attendance – to celebrate outstanding property and construction projects in Bristol, Gloucestershire, Wiltshire, Dorset, Somerset, Devon and Cornwall.

This year’s Awards received 63 nominations across 11 categories, with our panel of nine expert judges visiting each project and reviewing the applications during judging day. Our judging panel were faced with some exceptionally difficult decisions while narrowing down the shortlist this year and judging day included some long and lively debates around which projects should make it through.

Having long championed sustainability and innovation, the Awards place social, environmental, sustainable and economic values at the heart of their judging criteria – with these attributes considered just as important as a project’s aesthetics and purpose.

Regarded as among the most coveted accolades in the region, Michelmores’ 2024 Property Awards will include a new category reflecting the industry’s aim to reduce carbon and waste. The Regeneration Project of the Year category will showcase projects that involved work of significant refurbishment, retrofitting, regeneration or transformation value on an existing property or brownfield site, giving it a new lease of life and an environmentally efficient future.

The Michelmores Property Awards were established in 2002 and celebrate the very best construction and real estate projects taking place each year in the South West – from the most prestigious and exciting, to the truly innovative and daring.

Emma Honey, Head of Property at Michelmores said:

“Congratulations to all of the projects shortlisted in the Michelmores Property Awards 2024. As we celebrate the 21^st year of the Awards, the quality of the projects in the region is higher than ever and highlight the creativity and commitment of those working in the sector.

“We look forward to celebrating 2024’s winning projects at our gala dinner on Thursday 27 June at Sandy Park Conference Centre in Exeter. I look forward to seeing you all there.”

This year’s shortlisted projects:

The winner of the John Laurence Special Contribution Award will be announced at the Awards Dinner on 27 June.

Special thanks to our panel of judges: Iestyn John from Bell Cornwell, Glayne Price of LHC Architects, Nathan McLoughlin from McLoughlin Planning, Jo Davis from Avison Young, Mike Leece OBE, Ron Persaud of Change Real Estate, Toni Riddiford from Stride Treglown, Ajay Sharma from KTA Architects, Thelma Sorensen OBE, Honorary President of South West Women in Construction.

Read more about the Michelmores Property Awards here.

Sponsoring the Awards

The Michelmores Property Awards’ reach extends throughout the region’s property, real estate and construction sectors. Sponsoring the Awards is an excellent opportunity to raise your organisation’s profile in front of this audience and the ideal corporate hospitality opportunity. As a sponsor, you will be part of a bespoke networking event and your brand will benefit from exposure from a prestigious and well-regarded property-focused campaign that reaches over 1,300 engaged real estate companies in the South West.

Email events@michelmores.com to request a 2024 Awards sponsorship brochure to find out more about our opportunities.